Asset Sales. (a) The Company will not, and will not permit any Restricted Subsidiary to, consummate an Asset Sale, unless: (1) 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, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2): (A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent 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 liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary); (B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale; (C) 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) $400.0 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof). (b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”): (1) to repay, redeem or 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; or (2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses (a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture. (d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 2 contracts
Sources: Indenture (Crescent Energy Co), Indenture (Crescent Energy Co)
Asset Sales. (a) The Company will Issuer shall not, and will shall not permit any Restricted Subsidiary to, consummate cause, make or suffer to exist an Asset Sale, Sale unless:
(1) the Company Issuer or such Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value Fair Market Value (measured at the time of contractually agreeing to such Asset Sale) of the assets or Equity Interests 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), therefor received by the Company Issuer or a such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):amount of:
(A) any liabilities (as shown on the Company’s Issuer’s, or any such Restricted Subsidiary’s most recent internally available 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 Companythereto) of the Company Issuer or any Restricted Subsidiary, Subsidiary (other than liabilities that are contingent or by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, ) that are (i) assumed by the transferee of any such assets (and as a result of which the Issuer and its Restricted Subsidiaries are no longer obligated with respect to such liabilities 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 the Company or a Restricted Subsidiary)are indemnified against further liabilities;
(B) any securities, notes or other obligations or assets received by the Company Issuer or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company Issuer or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) any Capital Stock or assets, so long as such receipt of Capital Stock or assets would qualify under Section 4.10(b)(2); and
(D) any Designated Non-Cash cash Consideration received by the Company Issuer or a 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 (CD) that is at that time outstanding, not to exceed the greater of (ix) $400.0 million 130,000,000 and (iiy) 5.04.0% of Adjusted Consolidated Net Tangible Total Assets of the Company 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 Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and without giving effect to subsequent changes in value;
(D) Indebtedness of any Restricted Subsidiary that ceases value shall be deemed to be a Restricted Subsidiary as a result cash or Cash Equivalents for purposes of such Asset Sale (this provision and for no 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof)purpose.
(b) Within 365 days after the Issuer’s or a Restricted Subsidiary’s receipt of any the Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”covered by Section 4.10(a), the Company Issuer or a such Restricted Subsidiary, at its option, may apply an amount equal to such the Net Proceeds (the “Applicable Proceeds”):from such Asset Sale:
(1) to repaymake one or more offers to the Holders (and, redeem at the option of the Issuer, the holders of other senior Indebtedness) to purchase Notes (and such senior Indebtedness) pursuant to and subject to the conditions contained in this Indenture (each, an “Asset Sale Offer”); provided that in connection with any prepayment, repayment or repurchase:purchase of Indebtedness pursuant to this clause (1), the Issuer or such Restricted Subsidiary shall permanently retire such Indebtedness; provided, further, that if the Issuer or such Restricted Subsidiary shall so reduce any senior Indebtedness (other than the Notes), the Issuer shall equally and ratably reduce Indebtedness under the Notes by making an offer to all Holders to purchase at a purchase price equal to 100.0% of the principal amount thereof, plus accrued and unpaid interest and additional interest, if any, the pro rata principal amount of the Notes, such offer to be conducted in accordance with the procedures set forth below for an Asset Sale Offer;
(A2) Obligations to make an investment in respect (i) any one or more businesses, (ii) capital expenditures or (iii) acquisitions of Senior Indebtedness; orother property or long-term assets that, in each of (i), (ii) and (iii), are used or useful in a Similar Business;
(B3) Obligations in respect of to reduce Secured Indebtedness of a the Issuer or any Restricted Subsidiary and/or to reduce Indebtedness of any Restricted Subsidiary that is not a Guarantor, other than Obligations Indebtedness owed to the Company Issuer or any Restricted Subsidiary; provided that the acquisition of Indebtedness of a Restricted SubsidiarySubsidiary by the Issuer shall constitute a reduction in such Indebtedness; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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
(34) any combination of the foregoing.
(c) Pending Notwithstanding the final application foregoing, to the extent that repatriation to the United States of the amount America of any Applicable or all the Net Proceeds pursuant of any Asset Sale by a Foreign Subsidiary (x) is prohibited or delayed by applicable local law or (y) would have a material adverse tax consequence (taking into account any foreign tax credit or other net benefit actually realized in connection with such repatriation that would not otherwise be realized), as determined by the Issuer in its sole discretion exercised in good faith, the portion of such Net Proceeds so affected shall not be required to be applied in compliance with this covenant, the Company and its Restricted Subsidiaries such amounts may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited be retained by the Indentureapplicable Foreign Subsidiary; provided that clause (x) of this Section 4.10(c) shall apply to such amounts for so long, but only for so long, as the applicable local law shall not permit repatriation to the United States of America (the Issuer hereby agreeing to use 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 Net Proceeds is permitted under the applicable local law and is not subject to clause (y) of this Section 4.10(c), then such repatriation shall be promptly effected and such repatriated Net Proceeds shall be applied (net of additional taxes payable or reserved against as a result thereof) in compliance with this covenant. The time periods set forth in this covenant shall not start until such time as the Net Proceeds may be repatriated (whether or not such repatriation actually occurs).
(d) The amount equal to the Applicable Any Net Proceeds from Asset Sales that are not invested or applied as provided and within 365 days after the time period set forth in Section 4.10(b) will Issuer’s or a Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale shall be deemed to constitute “Excess Proceeds”.” In the case of Section 4.10(b)(2), a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment; provided that (x) such investment is consummated within 545 days after receipt by the Issuer or any Restricted Subsidiary of the Net Proceeds of any Asset Sale, and (y) if such investment is not consummated within the period set forth in subclause (x), the Net Proceeds not so applied shall be deemed to be Excess Proceeds. When the aggregate amount of Excess Proceeds exceeds $50.0 million25,000,000, the Company will Issuer shall make an offer Asset Sale Offer to all Holders Holders, and, at if required by the option terms of any other senior Indebtedness of the CompanyIssuer, to any the holders of any Indebtedness that is pari passu with the Notes (“Pari Passu such other senior Indebtedness” and such offer, an “Asset Sale Offer”), to purchase purchase, on a pro rata basis, the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness other senior Indebtedness, that is in an amount equal to at least are $2,000, 2,000 or an integral multiple of $1,000 in excess of $2,000, thereof that may be purchased out of the Excess Proceeds at an offer price, in the case of the Notes, price in cash in an amount equal to 100100.0% of the principal amount thereof (or or, in the case of any other senior Indebtedness offered at a significant original issue discount, 100.0% of the accreted value thereof, if lesspermitted by the relevant indenture or other agreement governing such other senior Indebtedness), plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other price, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to, but excludingnot including, the date fixed for the closing of such offer, in accordance with the procedures set forth in Section 3.09 this Indenture.
(or, in respect of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). e) The Company will Issuer shall commence an Asset Sale Offer with respect to Excess Proceeds within 30 days after the date that the amount of Excess Proceeds exceeds $50.0 million 25,000,000 by mailing or electronically delivering giving the notice required pursuant to Section 3.09the terms of this Indenture, with a copy to the Trustee, or otherwise in accordance with Applicable Procedures. The Company may Issuer may, at its option, satisfy the foregoing obligation obligations with respect to any Applicable Net Proceeds from an Asset Sale by making an offer to purchase Notes Asset Sale Offer with respect to the amount of all or part of the available Applicable such Net Proceeds (the “Advance Portion”) prior to the expiration of the Asset Sale Proceeds Application Period relevant 365 days (or such longer period provided under this Section 4.10) or with respect to the amount Excess Proceeds of all $25,000,000 or a part of the available Applicable Proceeds in advance of being required to do so by this Indenture less.
(the “Advance Offer”). f) To the extent that the aggregate principal amount (or accreted value, as applicable) of Notes and such Pari Passu senior Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Company and its Restricted Subsidiaries Issuer may use any remaining Excess Proceeds (or for general corporate purposes, subject to other covenants contained 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 or the Pari Passu senior Indebtedness surrendered in an Asset Sale Offer by such holders thereof exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, 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 senior Indebtedness shall be made purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such Pari Passu senior Indebtedness tendered with tendered, subject to adjustments as necessary by the Issuer so that no Notes or Pari Passu such other senior Indebtedness will be repurchased are left outstanding in part in an unauthorized denominationdenominations. 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 shall 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 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)zero.
(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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 2 contracts
Sources: Indenture (Fortress Transportation & Infrastructure Investors LLC), Indenture (Fortress Transportation & Infrastructure Investors LLC)
Asset Sales. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary of its Subsidiaries to, consummate an Asset Sale, unless:
(1i) the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value as determined in good faith by the Company (measured at such fair market value to be determined on the time date of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(2ii) 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), therefor received by the Company or a Restricted such Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):amount of:
(Aa) any liabilities (as shown on the Company’s or any Restricted such Subsidiary’s most recent balance sheet or in the notes thereto orfootnotes 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 such Subsidiary’s consolidated balance sheet or in the notes footnotes 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 such Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the NotesGuarantees, that are (i) assumed by the transferee of any such assets (or a third party in connection with such transfer) or (ii) that are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to and for which the Company or a Restricted Subsidiary);and all of its Subsidiaries have been validly released by all creditors in writing,
(Bb) any securities, notes or other obligations or assets received by the Company or a Restricted such Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted such Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;, and
(Cc) any Designated Non-Cash cash Consideration received by the Company or a Restricted such Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash cash Consideration received pursuant to this clause (Cc) that is at that time outstanding, not to exceed the greater of (i) $400.0 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 Consideration5.0 million, 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 shall be deemed to be a Restricted Subsidiary as a result Cash Equivalents for purposes of such Asset Sale (this Section 4.06(a) and for no 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof)purpose.
(b) Within 365 30 days after the receipt of any Net Proceeds of any Fundamental Property Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will shall make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to at least $2,000, or 2,000 and an integral multiple of $1,000 in excess of $2,000, thereof that may be purchased out of the Excess Net Proceeds of such Fundamental Property Asset Sale at an offer price, in the case of the Notes, price in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, 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 provided for by the terms of such Pari Passu Indebtedness), to, but excludingnot including, the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. The Company will commence an Asset Sale Offer with respect to such Net Proceeds by sending the notice required pursuant to the terms of this Indenture, with a copy to the Trustee, or otherwise in accordance with the procedures of DTC. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the Net Proceeds for such Fundamental Property Asset Sale, the Company may use any remaining Net Proceeds for general corporate purposes, subject to compliance with other covenants contained in this Indenture. If the aggregate principal amount of Notes surrendered in an Asset Sale Offer exceeds the amount of Net Proceeds for such Fundamental Property Asset Sale, the Trustee shall select the Notes to be purchased in the manner described in Section 3.09 3.04.
(orc) Within 365 days after the receipt of any Net Proceeds of (i) any Additional Property Asset Sale or (ii) any other Asset Sale (other than a Fundamental Property Asset Sale) in an aggregate amount greater than $20.0 million, the Company or such Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale.
(i) to make an Investment in (a) any one or more properties or businesses, provided that such Investment in any property or business is in the form of the acquisition of Capital Stock and results in the Company or any of its Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Subsidiary, (b) capital expenditures or (c) acquisitions of other properties or assets, in respect the case of each of (a), (b) and (c), used or useful in a Similar Business or to replace the businesses, properties and/or other assets that are the subject of such Pari Passu Asset Sale;
(ii) to repay (a) Obligations under Indebtedness (other than Subordinated Indebtedness) that is secured by a Lien, which Lien is permitted by this Indenture; or (b) Obligations under other Indebtedness (other than Subordinated Indebtedness), provided that the Company shall equally and ratably reduce Obligations under the Notes as provided under Section 3.01 through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth above for an Asset Sale Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; or
(iii) any combination of the foregoing; provided that, in the case of clauses (i) and (ii) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Company or such other 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 (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds (as defined below). Any Net Proceeds from any Asset Sale that are not invested or applied as provided and within the time period set forth in this Section 4.06(c) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes, as described in clause (iii) of this Section 4.06(b), shall be deemed to have been invested whether or not such offer is accepted) will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, the agreement or instrument governing Company shall make an Asset Sale Offer to all Holders to purchase the terms maximum aggregate principal amount of the Notes that is at least $2,000 and an integral multiple of $1,000 in excess thereof that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof), plus accrued and unpaid interest, if any, to, but not including, the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within 30 days ten Business Days after the date that the amount of Excess Proceeds exceeds exceed $50.0 20.0 million by mailing or electronically delivering sending the notice required pursuant to Section 3.09the terms of this Indenture, 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 procedures 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”)DTC. 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)Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Proceeds (or for general corporate purposes, subject to compliance with other covenants contained 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 OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, will Trustee shall select the Notes to be purchased in the manner described under in 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 denomination3.04. 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 shall 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 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).
(ed) [Reserved].
(f) Pending the final application of any Net Proceeds pursuant to this Section 4.06, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 2 contracts
Asset Sales. (a) The Company will Lessee shall not, and will shall not permit any Restricted Subsidiary of its Subsidiaries to, consummate (i) sell, lease, convey or otherwise dispose of any assets (including by way of a sale-and-leaseback) other than sales of inventory in the ordinary course of business consistent with past practice (provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of Lessee shall be governed by the provisions of Section 5.19 hereof and not by the provisions of this Section 5.18), or (ii) issue or sell Equity Interests of any of its Subsidiaries, in the case of either clause (i) or (ii) above, whether in a single transaction or a series of related transactions, (A) that have a fair market value in excess of $5,000,000, or (B) for net proceeds in excess of $5,000,000 (each of the foregoing, an "Asset Sale"), unless:
unless (1X) Lessee (or the Company or such Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at evidenced by a resolution of the time board of contractually agreeing directors of the General Partner (and, if applicable, the audit committee of such board of directors) set forth in a certificate signed by a Responsible Officer and delivered to such Asset SaleAgent) of the assets sold or otherwise disposed of; and
of and (2Y) except in the case of a Permitted Asset Swap, at least 7580% of the consideration for such Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), therefor received by the Company Lessee or a Restricted Subsidiary, as the case may be, such Subsidiary is in the form of cash or Cash Equivalentscash; provided provided, however, that each the amount of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A1) any liabilities (as shown on the Company’s Lessee's or any Restricted such Subsidiary’s 's most recent balance sheet or in the notes thereto orthereto), 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 Lessee or any Restricted Subsidiary, Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of Obligations hereunder and under the Notes, other Operative Documents) that are (i) assumed by the transferee of any such assets and (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 the Company or a Restricted Subsidiary);
(B2) any securities, notes or other obligations or assets received by the Company Lessee or a Restricted any such Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are immediately converted by the Company Lessee or a Restricted such Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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) $400.0 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 shall be deemed 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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 cash for purposes of this clause (2), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds)provision; and provided, further, that if the 80% limitation referred to in this clause (Y) shall not apply to any such commitment is 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 Asset Sale in which the cash portion of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Notwithstanding the foregoing.
, Asset Sales shall not be deemed to include (cw) Pending sales or transfers of accounts receivable by Lessee to an SPE and by an SPE to any other Person in connection with any Accounts Receivable Securitization permitted by Section 5.21 (provided that the final application aggregate amount of such accounts receivable that shall have been transferred to and held by all SPEs at any time shall not exceed 133% of the amount of Accounts Receivable Securitizations permitted to be outstanding under Section 5.21), (x) any Applicable Proceeds transfer of assets by Lessee or any of its Subsidiaries to a Subsidiary of Lessee that is a Guarantor under the Credit Agreement, (y) any transfer of assets by Lessee or any of its Subsidiaries to any Person in exchange for other assets used in a line of business permitted under Section 5.31 and having a fair market value not less than that of the assets so transferred and (z) any transfer of assets pursuant to this covenanta Permitted Lessee Investment or any sale-leaseback (including sale-leasebacks involving Synthetic Leases) permitted by Section 5.33. Notwithstanding the foregoing, the Company and its Restricted Subsidiaries Lessee may temporarily reduce Indebtednessnot sell, lease, convey or otherwise use such Applicable Proceeds in dispose of any manner not prohibited Unit except as permitted by the IndentureLease.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 2 contracts
Sources: Participation Agreement (Ferrellgas Partners Finance Corp), Participation Agreement (Ferrellgas Partners Finance Corp)
Asset Sales. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, consummate an Asset Sale, Sale unless:
(1i) the The Company or such the Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such the Asset Sale) Sale at least equal to the fair market value (measured at the time of contractually agreeing to such Asset Sale) 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 and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee; and
(2iii) except in the case of a Permitted Asset Swap, at least 75% of the consideration for such received in the Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), received Sale by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that , except to the extent the Company is undertaking a Permitted Asset Swap. For purposes of this provision and the next paragraph, each of the following will shall be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(A) any liabilities (liabilities, as shown on the Company’s 's or any such Restricted Subsidiary’s 's most recent 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 Guarantor’s Guarantee of the Notes, Subsidiary Guarantee) that are (i) assumed by the transferee of any such assets (or a third party in connection with such transfer) or (ii) otherwise cancelled or terminated in connection with and the transaction with such transferee (other than intercompany debt owed to lender releases the Company or a such Restricted Subsidiary);Subsidiary from further liability; and
(B) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary within 90 days into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following received in that conversion. Notwithstanding the closing of such Asset Sale;
(C) any Designated Non-Cash Consideration received by the Company or a Restricted Subsidiary in such Asset Sale having an aggregate fair market valueforegoing, 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) $400.0 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related shall be permitted to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence consummate an Asset Sale Offer without complying 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.if:
Appears in 2 contracts
Sources: First Supplemental Indenture (Entercom Communications Corp), Supplemental Indenture (Entercom Radio LLC)
Asset Sales. (a) The Company will not, and will not permit any of the Company’s Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1) the Company (or such the 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 ) at the time of the Asset Sale) Sale at least equal to the fair market value Fair Market Value (measured at as of the time date of contractually agreeing the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration for such received in the Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), received Sale by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(A) any liabilities (liabilities, as shown on the Company’s or any Restricted Subsidiary’s most recent 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 sheetthereto, as determined in good faith by the Company) of the Company or any Restricted Subsidiary, Subsidiary of the Company (other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, Note Guarantee) that are (i) assumed by the transferee of any such assets (pursuant to a novation 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 indemnity agreement that releases the Company or a such Restricted Subsidiary)Subsidiary from or indemnifies against further liability;
(B) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary of the Company from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are are, within 180 days, converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(C) any Designated Non-Cash cash Consideration received by the Company or a 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 cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of (ix) $400.0 200.0 million and (iiy) 5.03.0% of Adjusted Consolidated Net Tangible Total Assets of the Company at the time of the receipt of such Designated Non-Cash Consideration, cash Consideration (with the fair market value Fair Market Value of each item of Designated Non-Cash cash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and without giving effect to subsequent changes in value);
(D) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary of the Company that is not subordinated Indebtedness; and
(E) Indebtedness of any Restricted Subsidiary that ceases to be is no longer a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or a Restricted Subsidiary)Sale, to the extent that the Company and each other Restricted Subsidiary are released from any guarantee payment obligations with respect to such Indebtedness or 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after from the later of (A) the date of such Asset Sale and (B) the receipt of any Net Proceeds of any from an Asset Sale (as may be extended pursuant to clause (2) by an Acceptable Commitment as set forth below, the “Asset Sale Proceeds Application Period”), the Company (or a the applicable Restricted Subsidiary, at its option, as the case may be) may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”)::
(1) to repayreduce, redeem prepay, repay or repurchase:purchase Indebtedness and other Obligations under or pursuant to a Credit Facility or any Secured Indebtedness (unless the Notes are then secured by a priority or pari passu lien) of the Company or any Restricted Subsidiary and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(A2) to reduce Indebtedness and other Obligations in respect of Senior Indebtedness; or
(B) Obligations in respect of Indebtedness of a Restricted Subsidiary that is not a Guarantor, Guarantor (other than Obligations Indebtedness owed to the Company or a Restricted Subsidiary; orSubsidiary of the Company);
(23) to repay (i) Indebtedness or other Obligations of the Company that rank pari passu with the Notes or (ii) Indebtedness and other Obligations of a Guarantor that rank pari passu with such Guarantor’s Note Guarantee (other than Indebtedness owed to the Company or a Restricted Subsidiary of the Company); provided that the Company shall equally and ratably redeem or repurchase the Notes pursuant to Section 3.07 hereof, or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase the Notes at 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to but not including the date of repayment;
(4) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(5) to make a capital expenditure;
(a6) an Investment to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business;
(7) to acquire Capital Stock constituting a minority interest in any Person that at such time is a Restricted Subsidiary;
(8) to invest (including capital expenditures) in any one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Company , properties 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, assets (b) capital expenditures, (c) other expenditures made with respect to Oil and Gas Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (icurrent assets) that are or will be used or useful in replace the Oil and Gas Business or (ii) that replacebusinesses, in whole or in part, the properties or and/or assets that are the subject of such Asset Sale; provided that in the case of this clause (2), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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
(39) any combination of the foregoing. The Company will be deemed to have complied with the provisions set forth in clause (4), (5), (6), (7) and (8) of this Section 4.10(b) if within 365 days after the Asset Sale that generated the Net Proceeds, the Company (or the applicable Restricted Subsidiary) has entered into and not abandoned or rejected a binding agreement to consummate the transaction described therein and such transaction is thereafter completed within 180 days after the end of such 365-day period (an “Acceptable Commitment”). Pending the final application of any Net Proceeds, the Company (or the applicable Restricted Subsidiary) may temporarily reduce Indebtedness (including under the Credit Facilities) or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. The Company (or any Restricted Subsidiary, as the case may be) may elect to invest in the assets and/or Capital Stock, as the case may be, described in clauses (4), (5), (6), (7) and (8) of this Section 4.10(b) prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Sale, execution of a definitive agreement for the relevant Asset Sale, and consummation of the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with any of clauses (4), (5), (6), (7) and (8) of this Section 4.10(b) with respect to such Asset Sale.
(c) Pending If, with respect to any Asset Sale, at the final application expiration of the Proceeds Application Period with respect to such Asset Sale, there remains Net Proceeds in excess of $50.0 million (such amount of any Applicable Net Proceeds pursuant to this covenantthat is in excess of $50.0 million, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When ), then within 30 days after the aggregate amount expiration of Excess the Proceeds exceeds $50.0 millionApplication Period, the Company will make an offer Asset Sale Offer to all Holders of Notes and, at the option if required by its terms, all holders of Indebtedness of the Company, to any holders of any Indebtedness Company that is ranks pari passu with the Notes (“Pari Passu Indebtedness” and such offerto purchase, an “Asset Sale Offer”), to purchase prepay or redeem on a pro rata basis the maximum aggregate principal amount (or accreted value, if applicable) of the Notes and such Pari Passu other pari passu Indebtedness that is (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in an amount equal to at least $2,000, or an integral multiple of $1,000 in excess of $2,000, connection therewith) that may be purchased purchased, prepaid or redeemed out of the Excess Proceeds at an Proceeds. The offer price, price for the Notes in the case of the Notes, in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof (or accreted value thereof, if less)amount, plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other price, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to, to but excluding, not including the date fixed for the closing of such offerpurchase, in accordance with the procedures set forth in Section 3.09 (orprepayment or redemption, in respect of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). The Company will commence an Asset Sale 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 subject to the Trusteerights of Holders of Notes on a relevant record date to receive interest due on an interest payment date occurring on or prior to the Purchase Date, or otherwise and will be payable in accordance with Applicable Procedurescash. The Company may satisfy the foregoing obligation with respect to any Applicable the Net Proceeds from by making an Asset Sale by making an offer Offer prior to purchase Notes the expiration of the Proceeds Application Period (the “Advance Offer”) with respect to the amount of all or a part of the available Applicable 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 Applicable Proceeds in advance of being required to do so by this Indenture Indenture. If any Excess Proceeds remain after consummation of an Asset Sale Offer (or, in the “case of an Advance Offer, the Advance Portion) (“Declined Excess Proceeds”), the Company may use such Declined Excess Proceeds for any purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount (or accreted value, as applicable) of Notes and such Pari Passu other pari passu Indebtedness tendered pursuant in (or required to an be prepaid or redeemed in connection with) such Asset Sale Offer is less than exceeds the amount of Excess Proceeds (or or, in the case of an Advance Offer, the Advance Portion), the Company will select the Notes and its Restricted Subsidiaries may use any remaining Excess Proceeds (such other pari passu Indebtedness to be purchased on a pro rata basis, based on the amounts tendered or in required to be prepaid or redeemed, and thereafter 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, Trustee 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 tendered (with, in each case, such Pari Passu Indebtedness tendered with adjustments as necessary may be deemed appropriate by the Company or the Trustee, as applicable, so that no only Notes in denominations of $1,000, or Pari Passu Indebtedness an integral multiple of $1,000 in excess thereof, will be repurchased purchased, provided that any unpurchased portion of a Note must be in part in an unauthorized denominationa minimum denomination of $2,000). Upon completion of any such each 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 at zero. To the extent that any portion of whether there are any remaining Excess Net Proceeds (or Advance Portion) upon such completion) and payable in respect of the notes is denominated in a currency other than U.S. dollars, the amount thereof payable in respect of the Notes shall not exceed the net amount of funds in U.S. dollars that is actually received by 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 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 upon converting such consents)portion into U.S. dollars.
(e) [Reserved].
(fd) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws or and regulations are applicable in connection with the each 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 the provisions of Section 3.09 hereof or this IndentureSection 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to under Section 3.09 hereof or this Section 4.10 may be waived or modified with the written consent by virtue of the Holders of a majority in principal amount of the then outstanding Notessuch compliance.
Appears in 2 contracts
Sources: Indenture (Acadia Healthcare Company, Inc.), Indenture (Acadia Healthcare Company, Inc.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset SaleSale unless (i) the Company (or the Restricted Subsidiary, unless:
as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (1evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, receives consideration consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (including by way A) the amount 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) Senior Debt of the assets sold Company or otherwise disposed of; and
such Restricted Subsidiary that is assumed by the transferee in any such transaction and (2B) except in the case of a Permitted Asset Swap, at least 75% of the any 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 such Restricted Subsidiary, as the case may be, is in the form that consists of cash (1) all or Cash Equivalents; provided that each substantially all of the following will assets of one or more Similar Businesses, (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent 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 liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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) $400.0 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) provision. Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or a Restricted Subsidiarymay apply such Net Proceeds, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas Business to repay Indebtedness under a Credit Facility, or (ii) that replaceto the acquisition of Permitted Securities, in whole all or in part, the properties or assets that are the subject of such Asset Sale; provided that in the case of this clause (2), a binding commitment will be treated as a permitted application substantially all of the Applicable Proceeds from assets of one or more Similar Businesses, or the date making of such commitment so long as a capital expenditure or the Company or acquisition of other long-term assets in a Restricted Subsidiary enters into such commitment with the good faith expectation that such Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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) Similar Business. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantsuch Net Proceeds, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, Indebtedness under a Credit Facility or otherwise use invest such Applicable Net Proceeds in any manner that is not prohibited by the this Indenture.
(d) The amount equal to the Applicable . Any Net Proceeds from Asset Sales that are not applied or invested or applied as provided and within in the time period set forth in Section 4.10(b) will first sentence of this paragraph shall be deemed to constitute “"Excess Proceeds”". When the aggregate amount of Excess Proceeds exceeds $50.0 10.0 million, the Company will shall make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the 1997 Notes (“Pari Passu Indebtedness” and such offer, an “"Asset Sale Offer”), ") to purchase the maximum aggregate principal amount of the 1997 Notes and such Pari Passu Indebtedness that is in an amount equal to 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 Proceeds, at an offer price, in the case of the Notes, price in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, 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 provided for by the terms of such Pari Passu Indebtedness), to, but excluding, interest to the date fixed for the closing of such offerpurchase, 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). The Company will commence an Asset Sale 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”)1997 Indenture. To the extent that the aggregate principal amount (or accreted value, as applicable) of 1997 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 "Remaining Excess Proceeds") and the case sum of an Advance Offer(A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Advance PortionCompany will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in any manner not prohibited by cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the Pari Passu or pari passu Indebtedness surrendered in an Asset Sale Offer by Holders thereof exceeds the amount of Remaining Excess Proceeds (or in the case of an Advance a Secondary Asset Sale Offer, the Advance Portion), Company shall repurchase such Indebtedness on a pro rata basis and the Trustee, in accordance with the Applicable Procedures, will Trustee shall 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 denominationbasis. Upon completion of any such Asset Sale Offeroffer to purchase, 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 shall 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 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)zero.
(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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 2 contracts
Sources: Indenture (L-3 Communications SPD Technologies Inc), Indenture (Southern California Microwave Inc)
Asset Sales. (a) The RYAM and the Company will shall not, and will shall not permit any of the Restricted Subsidiary Subsidiaries to, consummate cause or make an Asset Sale, unless:
unless (1x) RYAM, the Company or such any Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value Fair Market Value (measured at as determined in good faith by the time of contractually agreeing to such Asset SaleCompany) of the assets sold or otherwise disposed of; and
, and (2y) 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), therefor received by RYAM, the Company or a such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):amount of:
(Ai) any liabilities (as shown on RYAM’s, the Company’s or any a Restricted Subsidiary’s most recent balance sheet or in the notes thereto orthereto) of RYAM, if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Company’s Company 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 liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, Guarantee) that are (i) assumed by the transferee of any such assets (or a third party in connection with such transfer) or (ii) that are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or a Restricted Subsidiary);transferee,
(Bii) any securities, notes or other obligations or other securities or assets received by RYAM, the Company or a such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by RYAM, the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;),
(C) 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) $400.0 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;
(Diii) Indebtedness of any Restricted Subsidiary that ceases to be is no longer a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or a Restricted Subsidiary)Sale, to the extent that RYAM, 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 the Asset Sale;,
(Eiv) consideration consisting of Indebtedness of RYAM or the Company (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not RYAM, the Company or any InvestmentRestricted Subsidiary, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 4.10(b)(2); and
(Fv) with respect to any Asset Sale of Oil and Gas Properties disposed of Designated Non-cash Consideration received by RYAM, the Company or any Restricted Subsidiary in which such Asset Sale having an aggregate Fair Market Value (as determined in good faith by the Company or any Restricted Subsidiary retains an interestCompany), taken together with all other Designated Non-cash Consideration received pursuant to this Section 4.06(a)(v) that is at that time outstanding, not to exceed the costs greater of $100.0 million and expenses related to 4.0% of Total Assets at the exploration, development, completion or production time of the receipt of such Oil Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and Gas Properties and activities related thereto agreed without giving effect to subsequent changes in value), shall be deemed to be assumed by Cash Equivalents for the transferee (or an Affiliate thereofpurposes of this Section 4.06(a).
(b) Within 365 days after RYAM’s, the Company’s or any Restricted Subsidiary’s receipt of any the Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) belowSale, the “Asset Sale Proceeds Application Period”)RYAM, the Company or a such Restricted SubsidiarySubsidiary may apply the Net Proceeds from such Asset Sale, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or repurchase:
(i) to repay (A) Obligations in Indebtedness constituting Bank Indebtedness and other Pari Passu Indebtedness that is secured by a Lien permitted under this Indenture (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect of Senior Indebtedness; or
thereto), (B) Obligations in respect of Indebtedness of a Restricted Subsidiary that is not a Guarantor, (C) Obligations under the Notes or (D) other than Obligations owed to Pari Passu Indebtedness (provided that if RYAM, the Company or any Guarantor shall so reduce the Obligations under unsecured Pari Passu Indebtedness under this clause (D), the Company will equally and ratably reduce Notes Obligations pursuant to Section 3.01, through open-market purchases (provided that such purchases are at or above 100% of the principal amount thereof or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all holders to purchase at a Restricted Subsidiarypurchase price equal to 100% of the principal amount thereof (or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest on the pro rata principal amount of Notes), in each case other than Indebtedness owed to RYAM, the Company or an Affiliate of the Company; or
(2ii) to make (a) an Investment investment in any one or more businesses; businesses (provided that if such Investment in any business investment is in the form of the acquisition of Capital Stock and of a Person, such acquisition results in the Company or any such Person becoming a Restricted Subsidiary owning an amount of RYAM or the Capital Stock of such business such that it constitutes Company), assets, or continues to constitute a Restricted Subsidiary, (b) property or capital expenditures, in each case (cA) other expenditures made with respect to Oil and Gas Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas a Similar Business or (iiB) that replace, in whole or in part, replace the properties or and assets that are the subject of such Asset Sale; provided that in Sale or to reimburse the cost of any of the foregoing incurred on or after the date on which the Asset Sale giving rise to such Net Proceeds was contractually committed. In the case of this clause (2Section 4.06(b)(ii), a binding commitment will shall be treated as a permitted application of the Applicable Net Proceeds from the date of such commitment until the 12-month anniversary of the date of the receipt of such Net Proceeds; provided that in the event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so long as applied, then such Net Proceeds shall constitute Excess Proceeds unless RYAM, the Company or a such Restricted Subsidiary enters into such another binding commitment with the good faith expectation that such Applicable Proceeds will be applied to satisfy such commitment (a “Second Commitment”) within 180 days six months of such commitment (or, if later, 365 days after cancellation or termination of the receipt of such Applicable Proceeds)prior binding commitment; provided, further, that if any RYAM, the Company or such commitment Restricted Subsidiary may only enter into a Second Commitment under the foregoing provision one time with respect to each Asset Sale and to the extent such Second Commitment is later cancelled or terminated for any reason before such Applicable Net Proceeds are appliedapplied or are not applied within 180 days of such Second Commitment, then such Applicable Net Proceeds will shall constitute Excess Proceeds (as defined below); or
(3) any combination of the foregoing.
(c) Proceeds. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantsuch Net Proceeds, RYAM, the Company and its or such Restricted Subsidiaries Subsidiary may temporarily reduce IndebtednessIndebtedness under a revolving credit facility, if any, or otherwise use invest such Applicable Net Proceeds in any manner not prohibited by the this Indenture.
(d) The amount equal to the Applicable . Any Net Proceeds from any Asset Sales Sale that are not invested or applied as provided and within the time period set forth in the first sentence of this Section 4.10(b4.06(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes, as described in clause (i) of this Section 4.06(b), shall be deemed to have been invested whether or not such offer is accepted) will be deemed to constitute “Excess Proceeds”. .” When the aggregate amount of Excess Proceeds exceeds $50.0 125.0 million, the Company will shall make an offer to all Holders holders of Notes (and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“other Pari Passu Indebtedness” and such offer, ) (an “Asset Sale Offer”), ) to purchase the maximum aggregate principal amount of the Notes (and such other Pari Passu Indebtedness Indebtedness), that is in an amount equal to at least $2,000, or 2,000 and an integral multiple of $1,000 in excess of $2,000, thereof that may be purchased out of the Excess Proceeds at an offer price, in the case of the Notes, price in cash in an amount equal to 100% of the principal amount thereof (or, in the event the Notes or other Pari Passu Indebtedness were issued with significant original issue discount, 100% of the accreted value thereof, if less), plus accrued and unpaid interest, if any interest (or, in respect of such other Pari Passu Indebtedness, such other lesser price, if any, as may be provided for by the terms of such other 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)this Indenture. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within 30 days ten (10) Business Days after the date that the amount of Excess Proceeds exceeds $50.0 125.0 million by mailing mailing, or delivering electronically delivering if held by the Depository, the notice required pursuant to Section 3.09the terms of this Indenture, 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 other Pari Passu Indebtedness 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)Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in for any manner purpose that is not prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the (and such other Pari Passu Indebtedness Indebtedness) surrendered in an Asset Sale Offer by holders thereof exceeds the amount of Excess Proceeds (or in the case of an Advance Offer, the Advance Portion)Proceeds, the Trustee, in accordance with upon receipt of notice from the Applicable ProceduresCompany of the aggregate principal amount to be selected, will shall select the Notes to be purchased in the manner described under in 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 denomination4.06(e). 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 shall 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 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)zero.
(e) [Reserved].
(fc) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(gd) The Company’s obligation Not later than the date upon which written notice of an Asset Sale Offer is delivered to make the Trustee as provided above, the Company shall deliver to the Trustee an offer Officers’ Certificate as to repurchase (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.06(b). On such date, the Company shall also irrevocably deposit with the Trustee or with a paying agent (or, if the Company or a Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in writing by the Company and to be held for payment in accordance with the provisions of this Section 4.06. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes pursuant or portions thereof that have been properly tendered to and are to be accepted by the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee are greater than the purchase price of the Notes tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.10 may 4.06.
(e) Holders electing to have a Note purchased shall be waived required to surrender such Note, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or modified with the written consent Company receives not later than one Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holders of a majority in holder, the principal amount of the then outstanding NotesNote which was delivered by the holder for purchase and a statement that such holder is withdrawing his election to have such Note purchased. If at the end of the Offer Period more Notes (and such other Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, selection of such Notes for purchase shall be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which such Notes are listed (and the Company shall notify the Trustee of any such listing), or if such Notes are not so listed, on a pro rata basis to the extent practicable, by lot or by such other method as the Trustee shall deem fair and appropriate (and in such manner as complies with the requirements of the Depository, if applicable); provided that no Notes of $2,000 or less shall be purchased in part. Selection of such other Pari Passu Indebtedness shall be made pursuant to the terms of such other Pari Passu Indebtedness.
(f) Notices of an Asset Sale Offer shall be mailed by the Company by first class mail, postage prepaid, or delivered electronically if held by the Depository, at least 30 but not more than 60 days before the purchase date to each holder of Notes at such holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 2 contracts
Sources: Indenture (Rayonier Advanced Materials Inc.), Indenture (Rayonier Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to: (i) sell, lease, convey or otherwise dispose of any assets (including, without limitation, by way of a sale and leaseback) other than sales of inventory and leases (or subleases) of restaurant facilities and related equipment to franchisees, in each case, in the ordinary course of business consistent with past practices (PROVIDED that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Subsidiaries shall be governed by the provisions of Sections 4.14 and 5.01 hereof), or (ii) issue or sell Equity Interests of any of its Subsidiaries, in the case of either clause (i) or (ii), whether in a single transaction or a series of related transactions, (a) The Company will notthat have a fair market value in excess of $1 million or (b) for net proceeds in excess of $1 million (each of the foregoing, and will not permit any Restricted Subsidiary toan "ASSET SALE"), consummate an Asset Sale, unless:
unless (1x) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at evidenced by a resolution of the time Board of contractually agreeing Directors set forth in an Officers' Certificate delivered to such Asset Salethe Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2y) except in the case of a Permitted Asset SwapNon-Cash Transaction, 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 therefor by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalentscash; provided PROVIDED, that each the amount of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s 's or any such Restricted Subsidiary’s 's most recent balance sheet or in the notes thereto orsheet), 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 Guarantor’s Guarantee of the Notes, guarantee thereof) that are (i) assumed by the transferee of any such assets (or pursuant to 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 customary novation agreement that releases the Company or a such Restricted Subsidiary);
Subsidiary from further liability and (B) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are contemporaneously (subject to ordinary settlement periods) converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing ), shall be deemed to be cash for purposes of such Asset Sale;
(C) any Designated Non-Cash Consideration received this provision. A transfer of assets by the Company or to a Wholly-Owned Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Nonor by a Wholly-Cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of (i) $400.0 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 Owned 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 to another Wholly-Owned Restricted Subsidiary), to the extent that the Company and each other an issuance of Equity Interests by a Wholly-Owned 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 and Gas Properties disposed of by the Company or any to another Wholly-Owned Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interestSubsidiary, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed shall not be deemed to be assumed an Asset Sale. Any Restricted Payment that is permitted by the transferee (or Section 4.07 hereof will not be deemed to be an Affiliate thereof).
(b) Asset Sale. Within 365 360 days after the receipt of any Net Proceeds of any from an Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1a) to repaypermanently reduce Indebtedness under the New Credit Facility (and to correspondingly reduce commitments with respect thereto), redeem or 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; or
(2b) to make (a) an Investment in any one or more 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 a majority of the assets of, or a majority of the voting Capital Stock Interests of, another Permitted Business, the making of such business such that it constitutes a capital expenditure or continues to constitute a Restricted Subsidiary, (b) capital expenditures, (c) other expenditures made with respect to Oil and Gas Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary acquisition of other tangible long-term assets, other than securitiesin each case, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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) Permitted Business. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantsuch Net Proceeds, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, revolving credit borrowings or otherwise use invest such Applicable Net Proceeds in any manner that is not prohibited by the this Indenture.
(d) The amount equal to the Applicable . Any Net Proceeds from such Asset Sales Sale that are not finally applied or invested or applied as provided and within in the time period set forth in Section 4.10(b) first sentence of this paragraph will be deemed to constitute “Excess Proceeds”. When "EXCESS PROCEEDS." Within ten days of each date on which the aggregate amount of Excess Proceeds exceeds $50.0 5 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Issuers shall commence a PRO RATA Asset Sale Offer”), Offer pursuant to Section 3.09 hereof to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, price in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, 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 provided for by the terms of such Pari Passu Indebtedness), to, but excluding, on the date fixed for the closing of such offeroffer plus accrued and unpaid interest and Liquidated Damages thereon, 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). The Company will commence an Asset Sale 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”)if any. 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 OfferProceeds, 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 such deficiency for any purpose not otherwise prohibited under this by the Indenture. An Asset Sale Offer or Advance Offer may be made at 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 Upon completion 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 offer to the extent such laws or regulations are applicable in connection with 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 the provisions of this Indenturepurchase, the Company amount of Excess Proceeds will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in this Indenture by virtue thereofbe reset at zero.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 2 contracts
Sources: Indenture (Restaurant Co), Indenture (Perkins Finance Corp)
Asset Sales. (a) The From and after the Completion Date, the Company will notshall not consummate, and will shall not permit any of its Restricted Subsidiary toSubsidiaries to consummate, consummate an Asset Sale, unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured as determined in good faith by the Company 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, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 7575.0% of the consideration for such Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), therefor received by the Company or a such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):amount of:
(A) any liabilities (as shown on the Company’s liabilities, contingent or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto orotherwise, 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 such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are owed to the Company or a Restricted Subsidiary that (ix) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (iiy) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or a its Restricted Subsidiary);Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company or a such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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 any 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 in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-Cash cash Consideration received by the Company or a such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-Cash cash Consideration received pursuant to this clause (CE) that is at that time outstanding, not to exceed the greater of (i) $400.0 225.0 million and (ii) 5.030.0% of Adjusted Consolidated Net Tangible Assets of LTM EBITDA for the Company most recently ended Test Period at the time of the receipt 113 of such Designated Non-Cash Consideration, cash Consideration (with the fair market value of each such item of Designated Non-Cash cash Consideration being measured, measured pursuant to this clause (E) 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;); and
(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;
(EF) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b)(2); and
(F4.10(b) with respect to any Asset Sale of Oil and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed hereof shall be deemed to be assumed by the transferee (or an Affiliate thereof)Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 365 540 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a such Restricted Subsidiary, at its their option, may apply an amount equal to such the Net Proceeds (the “Applicable Proceeds”):from such Asset Sale,
(1) to repayreduce, redeem prepay, repay or repurchasepurchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open- market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of Senior other Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or
(BD) Obligations in respect of Indebtedness of a Restricted Subsidiary that is not a GuarantorNon-Guarantor Subsidiary, other than Obligations Indebtedness owed to the Company or a another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) to make (a) an Investment in in
(A) any one or more businesses; , provided that such Investment in any business is in the form of the acquisition of Capital Stock and that results in the Company or any Restricted Subsidiary Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that it such business constitutes a Restricted Subsidiary or continues to constitute increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary, ;
(bB) capital expenditures, ; or
(c) other expenditures made with respect to Oil and Gas Properties, (dC) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
each of (a) (d) and this clause (eA), either (iB) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 2 contracts
Asset Sales. (a) The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, consummate an any Asset Sale, Sale unless:
(1) The Company (or a Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (determined as of the time of contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of in such Asset Sale (such Fair Market Value to be determined by (i) an executive officer of the Company or such Subsidiary if the value is less than $50.0 million or (ii) in all other cases by a resolution of the Company’s Board of Directors (or of a committee appointed thereby for such purposes)); and
(2) At least 75% of the total consideration from such Asset Sale, together with all other Asset Sales since the date of this Indenture (on a cumulative basis) received by the Company or such Restricted Subsidiary, as the case may be consists of cash or Cash Equivalents or Marketable Securities. For purposes of this provision, each of the following shall be deemed to be cash:
(A) the amount of any Indebtedness or other liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities or liabilities that are by their terms subordinated to the Notes or the related Guarantees) that are assumed by the transferee of any such assets and from which the Company or such Restricted Subsidiary, as the case may be, receives consideration (including is validly released 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, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent 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 liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary)creditors against further liability;
(B) the amount of any securities, notes Notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with that are within 180 days following the closing of such Asset Sale (including earnouts and similar obligations) that are Sale, subject to ordinary settlement periods, converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents actually so received) within 180 days following the closing of such Asset Sale);
(C) the Fair Market Value of any assets (other than securities) received by the Company or any Restricted Subsidiary to be used by the Company or any Restricted Subsidiary in a Permitted Business;
(D) any Designated Non-Cash cash Consideration received by the Company or a any Restricted Subsidiary in such an 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 (CD) that is at that time outstanding, not to exceed the greater of (i) $400.0 million 2.0% of the Company’s Consolidated Total Assets and (ii) 5.0% of Adjusted Consolidated Net Tangible Assets of the Company $50.0 million 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 Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and without giving effect to subsequent changes in value;
(DE) Indebtedness of any Restricted Subsidiary that ceases to be is no longer a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or a Restricted Subsidiary)Sale, to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale;
(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 consideration consisting of long-term Indebtedness of the Company (other than Subordinated Indebtedness) received after the date of this Indenture from Persons who are not the Company or any Restricted Subsidiary which is promptly terminated or cancelled by the Company.
(b) If the Company or any Restricted Subsidiary engages in an Asset Sale, the Company or such Restricted Subsidiary shall apply an amount equal to all or any Asset Sale of Oil the Net Proceeds therefrom to:
(1) repay Indebtedness under any Credit Facility, and Gas Properties disposed in the case of any such repayment under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility, or repay Indebtedness (other than Disqualified Stock) of a Restricted Subsidiary that is not a Guarantor (other than Indebtedness owed to the Company);
(2) (A) invest all or any part of the Net Proceeds thereof in capital expenditures or the purchase of assets to be used by the Company or any Restricted Subsidiary in which the Company or any a Permitted Business, (B) acquire Equity Interests in a Person that is a Restricted Subsidiary retains an interest, or in a Person engaged primarily in a Permitted Business that shall become a Restricted Subsidiary immediately upon the costs and expenses related to the exploration, development, completion or production consummation of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee acquisition or (or an Affiliate thereof).
(bC) Within 365 days after the receipt a combination of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or repurchase:
(A) Obligations in respect of Senior Indebtedness; or
and (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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 to fund obligations of the foregoing.
(c) Company or any Restricted Subsidiary under the Partnership Parks Agreements. Pending the final application of the an amount of equal to any Applicable Proceeds pursuant to this covenantsuch Net Proceeds, the Company and its or such Restricted Subsidiaries Subsidiary may temporarily reduce Indebtednessrevolving indebtedness under a Credit Facility, if any, or otherwise use invest such Applicable Net Proceeds in any manner not prohibited by the this Indenture.
(d) The amount equal to the Applicable . Any Net Proceeds from any Asset Sales Sale that is not applied or invested (or committed pursuant to a written agreement to be applied) as provided in the preceding paragraph within 365 days after the receipt thereof and, in the case of any amount committed to a reinvestment, which are not invested or actually so applied as provided and within the time 180 days following such 365-day period set forth in Section 4.10(b) will be deemed to shall constitute “Excess Proceeds”. .” When the aggregate cumulative amount of Excess Proceeds exceeds $50.0 millionmillion aggregate amount in any fiscal year, within 30 days thereof, the Company will be obligated to make an offer Excess Proceeds Offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to at least $2,000, or an integral multiple of $1,000 in excess of $2,000, that may be purchased out of the such Excess Proceeds at an offer price, in the case of the Notes, price in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, if less), plus together with accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other price, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to, but excluding, interest to the date fixed for the closing of such offer, offer in accordance with the procedures set forth in Section 3.09 this Indenture. To the extent the Company or a Restricted Subsidiary is required under the terms of Indebtedness of the Company or such Restricted Subsidiary (orother than Subordinated Indebtedness), in respect the Company shall also make a pro rata offer to the holders of such Pari Passu Indebtedness, Indebtedness (including the agreement or instrument governing the terms thereof)Notes) with such Excess Proceeds. The Company will commence an Asset Sale Offer with respect to deliver notice of such Excess Proceeds within 30 days after the date that the amount of Excess Proceeds exceeds $50.0 million Offer electronically or by mailing or electronically delivering the notice required pursuant to Section 3.09first-class mail, with a copy to the Trustee, Trustee and each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with Applicable Proceduresthe applicable procedures of DTC, describing the transaction or transactions that constitute the Asset Sale and offering to repurchase the Notes for the specified purchase price on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by the Indenture and described in such notice. The Company may satisfy the foregoing obligation obligations with respect to any Applicable Net Proceeds from an Asset Sale by making an offer to purchase Notes Excess Proceeds Offer with respect to the amount of all or part of the available Applicable Net Proceeds (the “Advance Portion”) prior to the expiration of the Asset Sale Proceeds Application Period relevant 450 days (or such longer period provided above) or with respect to any unapplied Excess Proceeds. To the extent that any portion of Net Proceeds payable in respect of the Notes is denominated in a currency other than U.S. dollars, the amount thereof payable in respect of the Notes shall not exceed the net amount of funds in U.S. dollars that is actually received by the Company upon converting such portion into U.S. dollars. If the aggregate principal amount of Notes and other parity Indebtedness surrendered by holders thereof exceeds the amount of all such Excess Proceeds, the Trustee 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 may require), 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 a part an integral multiple of the available Applicable Proceeds $1,000 in advance of being required to do so by this Indenture (the “Advance Offer”excess thereof, will be purchased). 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 Excess Proceeds 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 such Excess Proceeds (or in the case of an Advance OfferProceeds, 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 general corporate purposes in compliance with the provisions of this Indenture. Upon completion of an Excess Proceeds Offer, the amount of Excess Proceeds shall be reset at zero. Additionally, the Company may, at its option, make an Excess Proceeds Offer using proceeds from any Asset Sale at any time after the consummation of such Asset Sale. Upon consummation or expiration of any Excess Proceeds Offer, any remaining Net Proceeds shall not be deemed Excess Proceeds and the Company may use such Net Proceeds for any purpose not otherwise prohibited under this by the Indenture. An Notwithstanding any other provisions of this Section 4.10, (i) to the extent that any of or all the Net Proceeds of any Asset Sale Offer by a Foreign Subsidiary (a “Foreign Disposition”) is prohibited or Advance Offer may be made at delayed by applicable local law from being repatriated to the same time as consents are solicited with respect to an amendmentUnited States, 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 portion of such consentsNet Proceeds so affected will not be required to be applied in compliance with this covenant so long, but only so long, as the applicable local law, documents or agreements will not permit repatriation to the United States (the Company hereby agreeing to use reasonable efforts (as determined in the Company’s reasonable business judgment) to otherwise cause the applicable Foreign Subsidiary to within one year following the date on which the respective payment would otherwise have been required, promptly take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation).
, and if within one year following the date on which the respective payment would otherwise have been required, such repatriation of any of such affected Net Proceeds is permitted under the applicable local law, applicable organizational impediment or other impediment, such repatriated Net Proceeds will be promptly (eand in any event not later than five (5) [Reserved].
Business Days after such repatriation could be made) applied (fnet of additional taxes payable or reserved against as a result thereof) (whether or not repatriation actually occurs) in compliance with this covenant and (ii) to the extent that the Company has determined in good faith that repatriation of any of or all the Net Proceeds of any Foreign Disposition would have an adverse tax consequence (which for the avoidance of doubt, includes, but is not limited to, any prepayment whereby doing so the Company, any Restricted Subsidiary or any of their respective Affiliates and/or equity owners would incur a tax liability, including a taxable dividend, deemed dividend pursuant to Code Section 956 or a withholding tax), the Net Proceeds so affected will not be required to be applied in compliance with this covenant. The non-application of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default. The Company 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 such laws or and regulations are applicable in connection with the each repurchase of the Notes pursuant to required in the event of an Asset Sale Excess Proceeds Offer or Advance Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in under Section 3.09 hereof as a result thereof. The provisions of this Indenture by virtue thereof.
(g) The relative to the Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 as a result of an Asset Sale may be waived or modified with the written consent of the Holders holders of a majority in principal amount of the then outstanding Notes.
Appears in 2 contracts
Sources: Indenture (Six Flags Entertainment Corp), Indenture (Six Flags Entertainment Corp)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such the Asset Sale) Sale at least equal to the fair market value (measured at the time of contractually agreeing to such Asset Sale) Fair Market Value 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 received in the Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), received Sale by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the following will shall be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(Aa) any liabilities (as shown on the Company’s 's or any such Restricted Subsidiary’s 's most recent internal 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 Companythereto) of the Company or any such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (or a third party on behalf of the transferee) and for which the Company or such Restricted Subsidiary has been released by all creditors in connection with such transfer) writing or (ii) that are otherwise retired, cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or a Restricted Subsidiary)transferee;
(Bb) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) received in that conversion, within 180 days following the closing of such the Asset Sale;
(Cc) (1) any Designated Non-Cash Noncash Consideration received by the Company or a such Restricted Subsidiary in such Asset Sale in respect of assets or property that is Collateral having an aggregate fair market value, taken together with all other Designated Non-Cash Noncash Consideration received pursuant to this clause (Cc)(1) that is at that time outstanding, not to exceed the greater of (ix) $400.0 125.0 million and or (iiy) 5.04.0% of Adjusted Consolidated Net Tangible Total Assets of the Company at the time of the receipt of such Designated Non-Cash Noncash Consideration; and (2) any Designated Noncash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale in respect of assets or property that is not Collateral, having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (c)(2) that is at that time outstanding, not to exceed the greater of (x) $125.0 million or (y) 4.0% of Total Assets at the time of the receipt of such Designated Noncash Consideration, in each case of (1) and (2), with the fair market value Fair Market Value of each item of Designated Non-Cash Noncash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and 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
(Fd) with respect to any Asset Sale of Oil and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt proceeds of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas Business or (ii) that replace, in whole or in part, the properties or assets that are the subject of such Designated Asset Sale; provided that in the case of this clause (2), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 2 contracts
Sources: Indenture (Harland Clarke Holdings Corp), Indenture (Harland Clarke Holdings Corp)
Asset Sales. Each of the Lead Borrower and each other Group Member will not (i) sell, transfer, lease or otherwise dispose of any asset (including any disposition of any asset to a Delaware Divided LLC pursuant to a Delaware LLC Division) (each, a “Disposition”), including any Equity Interest owned by it or (ii) issue any additional Equity Interest in such other Group Member (other than (A) issuing or otherwise Disposing of directors’ or officers’ qualifying shares or shares issued to foreign nationals to the extent required by applicable Requirements of Law, (B) issuing Equity Interests to the Lead Borrower or any other Group Member in compliance with Section 6.04 and (C) any non-wholly-owned Group Member issuing Equity Interests to each owner of its Equity Interests ratably based on their relative ownership interests), in each case, having a Fair Market Value in excess of (x) with respect to any single transaction or series of related transactions, the greater of (I) $32,000,000 and (II) 2.0% of Consolidated EBITDA for the most recently ended Test Period or (y) with respect to all other Dispositions in any fiscal year not excluded pursuant to subclause (x), the greater of (I) $75,000,000 and (II) 4.6% of Consolidated EBITDA for the most recently ended Test Period, for all such other transactions on an aggregate basis in any fiscal year, except:
(a) The Company will notDispositions set forth on Schedule 6.05 hereto;
(b) Dispositions of surplus, obsolete, used or worn out property or other property, in each case whether now owned or hereafter acquired, if made in the good faith determination of the Lead Borrower or the applicable Group Member and/or in the ordinary course of business and Dispositions of property no longer used or useful to, or economically practicable or commercially reasonable to maintain, and will Dispositions of Intellectual Property that is not permit any Restricted Subsidiary material to, consummate an Asset Saleor is no longer used in, unless:the business of the Lead Borrower and the other Group Members (including (i) allowing any registration or application for registration of any such Intellectual Property to lapse, go abandoned or be invalidated or (ii) disposing of, discontinuing the use or maintenance of, abandoning, failing to pursue or otherwise allowing to lapse, expire, terminate or put into the public domain any such Intellectual Property, in each case, if the Lead Borrower determines in its reasonable business judgment that any of the foregoing does not materially interfere with or materially impair the business of the Lead Borrower and the other Group Members, taken as a whole);
(1i) Dispositions or consignments of inventory, goods held for sale, equipment or other assets (including leasehold or licensed interests in real property), including on an intercompany basis (x) in the ordinary course of business or (y) with respect to facilities that are temporarily not in use, held for sale or closed or the discontinuation of any product line or line of business, (ii) the Company leasing or subleasing of real property in the ordinary course of business and (iii) to the extent constituting a Disposition, the expiration of any option or similar agreement in respect of real or personal property;
(d) Dispositions of property to the extent that (i) such Restricted Subsidiaryproperty is exchanged for credit against the purchase price of similar replacement property, as or other assets or services of comparable or greater value or usefulness to the case may be, receives consideration business (including transactions covered by way Section 1031 of relief fromthe Code or any comparable provision of any foreign jurisdiction) as determined by the Lead Borrower in good faith or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(e) Dispositions of property to any Group Member; provided, that if the transferor in such transaction is a Loan Party, then either (i) the transferee is a Loan Party (other than Holdings), (ii) such Disposition is (x) for Fair Market Value or (y) pursuant to customary “cost plus” transfer pricing arrangements in the ordinary course of business or (iii) such Disposition, if treated as an Investment, would otherwise be made in compliance with Section 6.04;
(f) Dispositions permitted by Section 6.03, Investments permitted by, or made to effect Investments permitted by, Section 6.04, Restricted Payments permitted by any Section 6.08 and Liens permitted by Section 6.02, in each case, other Person assuming responsibility forthan by reference to this Section 6.05(f);
(g) Dispositions of cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(h) Dispositions of (A) accounts receivable, any liabilitiesnotes receivable, contingent rights to payment or otherwiseother current assets or, in each case, participations therein, in the ordinary course of business or the conversion of accounts receivable to notes receivable or other dispositions of accounts receivable or rights to payment in connection with such Asset Salethe collection or compromise thereof or as part of any bankruptcy or reorganization process (including any discount or forgiveness in connection with the foregoing) at least equal and (B) assets in connection with any Existing Receivables Financing or Permitted Receivables Financing Assets pursuant to the fair market value any other Permitted Receivables Financing permitted under Section 6.01 (measured at the time of contractually agreeing to such Asset Sale) including Equity Interests in any Subsidiary all or substantially all of the assets sold of which are Permitted Receivables Financing Assets);
(i) Dispositions constituting, and terminations of, leases, subleases, licenses, sublicenses or cross-licenses (including of Intellectual Property or technology and any Disposition of improvements made to leased real property resulting from any such Disposition), the Disposition or termination of which (i) is made in the ordinary course of business, (ii) does not materially interfere with the business of the Lead Borrower and the other Group Members, taken as a whole or (iii) relates to facilities that are temporarily not in use, held for sale or closed or the discontinuation of any product line or line of business;
(j) transfers of property subject to, or otherwise disposed as a result of; and, Casualty Events;
(2k) except additional Dispositions (including the sale or issuance of Equity Interests); provided that (i) such Disposition is made for Fair Market Value, (ii) other than any Dispositions pursuant to this clause (k) involving assets with a Fair Market Value of less than (A) with respect to any single transaction or series of related transactions, the greater of (x) $250,000,000 and (y) 15% of Consolidated EBITDA for the most recently ended Test Period or (B) with respect to all other Dispositions in any fiscal year not excluded from the requirements of this clause (ii) pursuant to subclause (A), the greater of (x) $800,000,000 and (y) 47.5% of Consolidated EBITDA for the most recently ended Test Period, for all such transactions on an aggregate basis in any fiscal year (in each case of a other than any Permitted Asset Swap), at least 75the Lead Borrower or any other Group Member shall receive not less than 75.0% of the consideration for such Disposition (other than the portion of any such Disposition consisting of a Permitted Asset SaleSwap), together with all other Asset Sales Dispositions undertaken pursuant to this clause (k) since May 6, 2021 the Closing Date (on a cumulative basis), received by the Company or a Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided provided, however, that each of for the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
clause (Aii), (I) any Indebtedness or other liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent consolidated balance sheet included in the financial statements most recently delivered on or prior to such date pursuant to Section 5.01(a) or (b) or in the notes footnotes thereto (or, if incurred the incurrence of or accrued subsequent to increase in such Indebtedness or other liability took place after the date of such balance sheet, such liabilities that would have been reflected shown on the Company’s or a Restricted Subsidiary’s consolidated such balance sheet or in the notes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheetthereto, as determined by the Lead Borrower in good faith by the Companyfaith)) of the Company Lead Borrower or any Restricted Subsidiarysuch other Group Member, other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the NotesLoan Document Obligations (other than intercompany liabilities owing to a Group Member that is being Disposed of), that (1) are (i) assumed by the transferee of any such assets (or a third party in connection with such transfer) respect to the applicable Disposition or (ii2) are otherwise cancelled or terminated in connection with the transaction with such transferee transferee, and for which the Lead Borrower or such other Group Member shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (other than intercompany debt owed II) the amount of any trade-in value applied to the Company or a Restricted Subsidiary);
purchase price of any replacement assets acquired in connection with such Disposition shall be deemed to be cash, (BIII) any securities, notes securities or other obligations or assets received by the Company Lead Borrower or a Restricted Subsidiary such other Group Member from such transferee or in connection with such Asset Sale (including earnouts and earn-outs or similar obligations) that are converted by the Company Lead Borrower or a Restricted Subsidiary such other Group Member into cash or Cash Equivalents, Equivalents or that 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;
the applicable Disposition, shall be deemed to be cash, (CIV) any asset, Investment, expenditure or other reinvestment that would be a permitted reinvestment pursuant to Section 2.11(c)(i) shall be deemed to be cash and (V) any Designated Non-Cash Consideration received by the Company Lead Borrower or a Restricted Subsidiary such other Group Member in respect of such Asset Sale Disposition having an aggregate fair market valueFair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (Ck) that is at that time outstanding, not to exceed the greater of in excess (i) $400.0 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) of the greater of (x) $600,000,000 and (y) 37.5% of Consolidated EBITDA for the most recently ended Test Period (net of any Designated Non-Cash Consideration converted into cash or Cash Equivalents), with the fair market value 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 measured at the time received and, in either case, and without giving effect to subsequent changes in value, shall be deemed to be cash and (iii) to the extent such Disposition results in a decrease to the Aggregate Borrowing Base in excess of 10%, the Lead Borrower shall have delivered to the Administrative Agent a Borrowing Base Certificate, recomputing the Aggregate Borrowing Base on a pro forma basis after giving effect to such Disposition;
(Dl) Indebtedness Dispositions of Investments in Joint Ventures to the extent required by, or made pursuant to buy/sell and/or put/call arrangements between the Joint Venture parties set forth in, Joint Venture agreements and similar binding arrangements;
(m) Dispositions of any Restricted Subsidiary that ceases assets (including Equity Interests) acquired in connection with any acquisition or other Investment permitted hereunder, which assets are not core or principal to be a Restricted Subsidiary the business of the Lead Borrower and the other Group Members, including such Dispositions (x) made with the approval of (or to obtain the approval of) any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Lead Borrower to consummate any acquisition or other Investment permitted hereunder or (y) which, within 90 days of the date of such acquisition or Investment, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of the Lead Borrower or any other Group Member or any of their respective businesses;
(n) transfers of condemned property as a result of such Asset Sale (the exercise of “eminent domain” or other than intercompany debt owed similar powers to the Company respective Governmental Authority or a Restricted Subsidiaryagency that has condemned such property (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from, or subject to, foreclosure, expropriation, forced disposition, casualty, eminent domain, condemnation proceedings or any similar action, or in lieu thereof, or that have been subject to a casualty or otherwise to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount respective insurer of such Indebtedness in connection with such Asset Salereal property as part of an insurance settlement;
(Eo) Dispositions of assets that do not constitute Collateral with an aggregate Fair Market Value, for all such assets disposed of pursuant to this clause (o) in any Investmentfiscal year, Capital Stock, assets, property or capital or other expenditure not to exceed the greater of (x) $300,000,000 and (y) 18% of Consolidated EBITDA for the kind referred most recently ended Test Period; provided that any unused amounts pursuant to in Section 4.10(b)(2); and
this clause (Fo) during any fiscal year shall carry forward into succeeding fiscal years until applied and any unused amounts pursuant to this clause (o) with respect to any Asset Sale of Oil and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders andnext succeeding fiscal year may, at the option of the CompanyLead Borrower, be carried back to and used in the then current fiscal year;
(p) the Transactions and any holders of any Indebtedness that is pari passu Disposition contemplated in connection with the Notes (“Pari Passu Indebtedness” and such offerTransactions, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, if less), plus accrued and unpaid interest, if including any (or, in respect of such Pari Passu Indebtedness, such other price, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to, but excluding, the date fixed for the closing of such offer, Disposition consummated in accordance with the procedures set forth Acquisition Agreement;
(q) Dispositions in Section 3.09 the form of Sale Leasebacks so long as (or, in respect of i) if such Pari Passu Sale Leaseback constitutes Indebtedness, the agreement Lead Borrower is in compliance on a Pro Forma Basis with the applicable ratio set forth for Incremental Equivalent/Ratio Debt or instrument governing the terms thereof). The Company will commence an Asset Sale 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 such Indebtedness is permitted pursuant to Section 3.096.01(a)(v) or (ii) the Fair Market Value of all such assets disposed of pursuant to this clause (q)(ii) does not exceed the greater of $400,000,000 and 25% of Consolidated EBITDA as of the most recently ended Test Period;
(r) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(s) Dispositions of the Equity Interests or other securities of, or debt owed to any Group Member by, any Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries, provided that such Restricted Subsidiary owns no other material assets other than Equity Interests, Indebtedness or other securities of one or more Unrestricted Subsidiaries);
(t) Dispositions in connection with the undertaking or consummation of any Permitted Reorganization, any IPO Reorganization Transaction or any Tax Restructuring and, in each case, any transaction related thereto or contemplated thereby;
(u) the surrender or waiver of contractual rights and the surrender, release, settlement or waiver of contractual or litigation claims in the ordinary course of business or otherwise if the Lead Borrower determines in good faith that such action is in the best interests of the Lead Borrower and the other Group Members, taken as a copy whole, and is not materially disadvantageous to the TrusteeLenders;
(v) the termination or unwinding of any Swap Agreement;
(w) Dispositions of assets with an aggregate Fair Market Value, or otherwise for all such assets disposed of pursuant to this clause (w) in accordance with Applicable Procedures. The Company may satisfy any fiscal year, not to exceed the foregoing obligation with respect greater of (x) $300,000,000 and (y) 18% of Consolidated EBITDA for the most recently ended Test Period; provided that any unused amounts pursuant to this clause (w) during any Applicable Proceeds from an Asset Sale by making an offer fiscal year shall carry forward into succeeding fiscal years until so applied and any unused amounts pursuant to purchase Notes this clause (w) with respect to the amount of all or part next succeeding fiscal year may, at the option of the available Applicable Proceeds Lead Borrower, be carried back to and used in the then current fiscal year;
(x) Disposition of assets for Fair Market Value to effect transactions that, if structured as Restricted Payments or Investments, would be permitted as such hereunder (other than by reference to this clause (x)), which Dispositions shall, for the “Advance Portion”) prior to the expiration avoidance of doubt, constitute utilization of the Asset Sale Proceeds Application Period applicable Restricted Payments or Investments exception or capacity, as applicable;
(y) Dispositions of any Subsidiary that is a Delaware Divided LLC and Dispositions to effect the formation of any Subsidiary that is a Delaware Divided LLC which Disposition is not otherwise prohibited hereunder, provided that the Lead Borrower complies with Section 5.11 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 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 Delaware Divided LLC to the extent such laws or regulations are applicable applicable;
(z) [reserved];
(aa) Dispositions of immaterial real property and related immaterial assets, in each case, in the ordinary course of business in connection with the repurchase of the Notes pursuant relocation activities for Permitted Payees;
(bb) Dispositions made to an Asset Sale Offer comply with any final order or Advance Offer. To the extent that the provisions other binding directive of any securities laws or regulations conflict with the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.Governmental Authority having proper jurisdiction over the
Appears in 2 contracts
Sources: Abl Credit Agreement (Clarios International Inc.), Abl Credit Agreement (Clarios International Inc.)
Asset Sales. (a) The Company will ▇▇▇▇ Las Vegas and the Restricted Entities shall not, and will shall not permit any of their respective Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1a) the Company no Default or such Restricted Subsidiary, as the case may be, receives consideration (including by way Event of relief from, Default exists or by any other Person assuming responsibility for, any liabilities, contingent is continuing immediately prior to or otherwise, in connection with after giving effect to such Asset Sale;
(b) except with respect to Non-Project Assets, the Opening Date has occurred;
(c) the applicable entity receives consideration at the time of the Asset Sale at least equal to the fair market value (measured at the time of contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed ofof (it being understood that a percentage of the purchase price may be subject to escrow arrangements customary for asset sales);
(d) if the aggregate consideration to be received by the applicable entity is in excess of $10.0 million, the fair market value is evidenced by a certificate of the Chief Financial Officer of the applicable entity delivered to the Trustee; and
(2e) except at least 75% (or 95%, in the case of a Permitted any Asset Swap, at least 75% Sale that occurs on or before the Completion Date) of the consideration for such received in the Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), received Sale by the Company or a Restricted Subsidiary, as the case may be, applicable entity is in the form of cash or Cash Equivalents; provided that . For purposes of this Section 4.10, each of the following will shall be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(A1) any liabilities (liabilities, as shown on the Company’s or any Restricted Subsidiary’s such entity's most recent balance sheet or in the notes thereto or, if incurred or accrued subsequent to the date of such consolidated 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, entity (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, Note Guarantee) that are (i) assumed by the transferee of any such assets (or pursuant to a third party in connection with customary novation agreement that releases such transfer) or (ii) otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or a Restricted Subsidiary);entity from further liability; and
(B2) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary such entity from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted within 30 Business Days following such receipt by the Company or a Restricted Subsidiary such entity into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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) $400.0 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after conversion. After the receipt of any Net Proceeds from an Asset Sale by ▇▇▇▇ Las Vegas, any Restricted Entity or any of their respective Restricted Subsidiaries, the applicable entity:
(1) within 270 days (or within 90 days, in the case of any Asset Sale (as may be extended pursuant to clause (2that occurs on or before the Completion Date) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its optionafter receipt of such Net Proceeds, may apply an amount equal the Net Proceeds to repay secured unsubordinated Indebtedness of ▇▇▇▇ Las Vegas or any of its Restricted Subsidiaries and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly permanently reduce the commitments with respect to such Net Proceeds (the “Applicable Proceeds”):
(1) to repayIndebtedness, redeem or 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; or
(2) to make within 270 days (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securitieswithin 90 days, in the case of clauses
(aany Asset Sale that occurs on or before the Completion Date) (d) and this clause (e)after receipt of such Net Proceeds, either (i) may apply any Net Proceeds to make a capital expenditure, improve real property or acquire long-term assets that are or will be used or useful in the Oil and Gas Business or (ii) that replace, in whole or in parta line of business permitted by Section 4.13 hereof. In any such case, the properties Restricted Entities shall take all necessary action to ensure that the security interest of the Trustee, on behalf of the Holders, continues as a perfected security interest (subject only to the security interest securing the Credit Agreement and other Permitted Liens and the terms of the Intercreditor Agreements) on any property or assets that are the subject of such Asset Sale; provided that in the case of this clause (2), a binding commitment will be treated as a permitted application of the Applicable Proceeds from the date of such commitment so long as the Company acquired or a Restricted Subsidiary enters into such commitment constructed with the good faith expectation that such Applicable Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (orany Asset Sale on the terms set forth in this Indenture, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Intercreditor Agreements and the foregoing.
(c) other Collateral Documents. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantNet Proceeds, the Company and applicable entity may (1) apply the Net Proceeds to temporarily reduce amounts outstanding under any secured unsubordinated Indebtedness of ▇▇▇▇ Las Vegas or any of its Restricted Subsidiaries may temporarily reduce IndebtednessSubsidiaries, or otherwise use such Applicable (2) invest the Net Proceeds in any manner not prohibited by the Indenture.
Cash Equivalents which shall be subject to a perfected security interest (d) The amount equal subject only to the Applicable security interest securing the Credit Agreement and other Permitted Liens and the terms of the Intercreditor Agreements) in favor of the Trustee as security for the Notes. Any Net Proceeds from Asset Sales that are not invested applied to repay Indebtedness or applied invested, in each case as provided and within in the time period set forth in Section 4.10(b) will be deemed to immediately preceding paragraph, shall constitute “"Excess Proceeds”. When ." Within 10 days following the date on which the aggregate amount of Excess Proceeds exceeds $50.0 10.0 million, the Company will ▇▇▇▇ Las Vegas shall make an offer (an "Asset Sale Offer") to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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 Proceeds. The offer price, price in the case of the Notes, in cash in an amount any Asset Sale Offer shall be equal to 100% of the principal amount thereof (or accreted value thereof, if less), of the Notes to be purchased plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other price, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to, but excluding, interest to the date fixed for the closing of such offerpurchase, and shall be payable in accordance with the procedures set forth in Section 3.09 (or, in respect cash. If any Excess Proceeds remain after consummation of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). The Company will commence an Asset Sale 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 applicable entity may use any remaining those Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in for any manner general corporate purpose not prohibited by this IndentureIndenture and the Collateral Documents. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the Pari Passu Indebtedness surrendered in an tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, will Trustee shall select the Notes to be purchased as described 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 denominationhereof. Upon completion of any such each 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 shall 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 Indentureat zero. An Asset Sale Offer or Advance Offer may be made at 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 Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or and regulations are applicable in connection with the each 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 the provisions of Sections 3.10 or 4.10 of this Indenture, the Company will Issuers shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its their obligations described in under those provisions of this Indenture by virtue thereofof such conflict.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 2 contracts
Sources: Indenture (Wynn Resorts LTD), Indenture (Wynn Las Vegas LLC)
Asset Sales. Borrower shall not, and shall not permit any of its Subsidiaries to, Transfer any asset (including any Capital Stock owned by Borrower or any of its Subsidiaries), including any Transfer, license or cross-license of Intellectual Property to, from or with an Affiliate of Borrower or any other Person, nor shall Borrower permit any of its Subsidiaries to issue any additional Capital Stock in such Subsidiary (other than to Borrower or another Subsidiary of Borrower in compliance with Section 10.09), except:
(a) The Company will notsales of (i) inventory, used, worn-out, obsolete or surplus equipment or property and will not permit any Restricted Subsidiary to(ii) Permitted Investments, consummate an Asset Sale, unless:in each case in the ordinary course of business;
(1b) Transfers among Borrower Parties; provided that in the Company or such Restricted case of a Transfer where the transferee Borrower Party is a Subsidiary, as such Subsidiary is a Subsidiary Guarantor who has complied with the case may beterms of this Agreement, receives consideration including the execution and delivery of the applicable Security Documents;
(including by way of relief from, or by any i) Permitted Intercompany Transfers and (ii) other Person assuming responsibility for, any liabilities, contingent or otherwiseTransfers from Borrower Parties to Subsidiaries that are not Subsidiary Guarantors, in connection with the ordinary course of business and in an aggregate amount not to exceed $[***] in any fiscal year;
(d) sales of assets, the proceeds of which are in an aggregate amount less than $[***]; provided that the consideration received for such Asset Sale) assets shall be in an amount at least equal to the fair market value thereof (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, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent 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 CompanyPrincipal Financial Officer);
(e) Non-exclusive licenses of patents, trademarks and other intellectual property rights granted by Borrower or its Subsidiaries in the ordinary course of business and not interfering in any respect with the ordinary conduct of the Company business of Borrower or any Restricted such Subsidiary, other than liabilities that are by their terms subordinated in right ; and
(f) Transfers of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (or a third party in connection with such transfer) or (ii) otherwise cancelled or terminated accounts receivable in connection with the transaction with such transferee compromise, settlement or collection thereof (other than intercompany debt owed to the Company or a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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) $400.0 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 as part 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 Subsidiaryfinancing transaction), 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more businesses; provided that such Investment in any business is effected in the form ordinary course of the acquisition of Capital Stock business 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 (prior to any compromise, settlement or accreted value, as applicableother adjustment) of Notes and such Pari Passu Indebtedness tendered pursuant not 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) exceed $[***] 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 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)fiscal year.
(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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 2 contracts
Sources: Loan Agreement (Mevion Medical Systems, Inc.), Loan Agreement (Mevion Medical Systems, Inc.)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1) the Company or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility responsibilities for, any liabilities (other than any contingent liabilities, contingent or otherwise, in connection with such )) at the time of the Asset Sale) Sale at least equal to the fair market value Fair Market Value (measured at as of the time date of contractually agreeing the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or 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 its Restricted Subsidiaries in the Asset Sale (considered together on a cumulative basis, with all consideration received by the Company or any of its Restricted Subsidiary, as Subsidiaries in respect of other Asset Sales consummated since the case may be, Issue Date) is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(A) any liabilities (liabilities, as shown on the Company’s or any of its Restricted Subsidiary’s Subsidiaries’ most recent 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 such Restricted Subsidiary, Subsidiary (other than contingent liabilities and Subordinated Debt) that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement (or a third party in connection with such transfer) or (ii) otherwise cancelled or terminated in connection other legal documentation with the transaction with such transferee (other than intercompany debt owed to same effect) that releases the Company or a such Restricted Subsidiary)Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(B) any securities, notes or other obligations or assets received by the Company or a any of its Restricted Subsidiary Subsidiaries from such transferee or in connection with such that are, within 90 days after the Asset Sale (including earnouts and similar obligations) that are Sale, converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalentscash, 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 Salereceived in that conversion;
(C) any Additional Assets of the kind referred to in clause (2) of Section 4.10(b); and
(D) any Designated Non-Cash cash Consideration received by the Company or a 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 (C) that is at that time outstanding, not to exceed the greater of (i) $400.0 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 respect 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale (as may be extended pursuant or, if the Company or any of its Restricted Subsidiaries has entered into a binding commitment or commitments with respect to clause 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 Proceeds Application Period”)and (y) 180 days after the entering into of such commitment or commitments, the Company or a any of its Restricted Subsidiary, at its option, Subsidiaries may apply an amount equal to the amount of such Net Proceeds (at its option to any combination of the “Applicable Proceeds”):following:
(1) to repay, redeem or repurchase:
(A) Obligations in respect repurchase any Senior Debt, provided that such repayment, redemption or repurchase may close up to 60 days after the end 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; orsuch 365-day period;
(2) to make (a) an Investment invest in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is later cancelled or terminated for any reason before such Applicable Proceeds are applied, then such Applicable Proceeds will constitute Excess Proceeds (as defined below)acquire Additional Assets; or
(3) any combination to make capital expenditures in respect of the foregoing.
(c) a Permitted Business. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantNet Proceeds, the Company and or any of its Restricted Subsidiaries may temporarily reduce Indebtedness, revolving credit borrowings or otherwise use such Applicable invest the Net Proceeds in any manner that is not prohibited by the this Indenture.
(dc) The An amount equal to the Applicable any Net Proceeds from Asset Sales that are not applied or invested or applied as provided and within the time period set forth in clauses (1) through (3) of Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When .” Within ten Business Days after the aggregate amount of Excess Proceeds exceeds $50.0 30.0 million, the Company will make an offer (an “Asset Sale Offer”) to all Holders and, at the option of the Company, to any Notes and all holders of any 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, prepay or redeem with the proceeds of sales of assets, to repurchase the maximum principal amount of Notes and to purchase, prepay or redeem such other pari passu Indebtedness (“Pari Passu Indebtedness” plus all accrued interest on the Indebtedness and such offerthe 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 and Liquidated Damages, if any, to the date of repurchase, prepayment or redemption, subject to the rights of Holders on the relevant record date to receive interest and Liquidated Damages, if any, due on an “interest payment date 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”), to purchase the maximum Company or any of its Restricted 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, the Trustee will select the Notes and such Pari Passu 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 an amount equal to at least denominations of $2,000, 2,000 or an integral multiple of $1,000 in excess of $2,000, that may 2,000 will 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, 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 provided 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 thereofpurchased). The Company will commence an Upon completion of each Asset Sale Offer with respect to Excess Proceeds within 30 days after the date that Offer, 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 will be reset at zero.
(d) Notwithstanding the foregoing obligation with respect to any Applicable Proceeds from an Asset Sale by making an offer to purchase Notes with respect to paragraphs of this Section 4.10, the amount sale, conveyance or other disposition of all or part substantially all of the available Applicable Proceeds (the “Advance Portion”) prior to the expiration properties or assets 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 Subsidiaries, taken as a whole, will be governed by the case provisions of an Advance Offer, the Advance Portion) in any manner Section 4.14 and/or Section 5.01 and 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 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)4.10.
(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 such those laws or and regulations are applicable in connection with the each 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 the provisions this Section 4.10, or compliance with this Section 4.10 would constitute a violation of this Indentureany 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 described under 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 virtue thereofapplicable 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.
(g2) 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 Company’s obligation notice will contain all instructions and materials necessary to make an offer enable such Holders to repurchase tender Notes pursuant to the Notes 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 waived or modified required to surrender the Note, with the written consent 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 Holders Offer Period, a letter or electronic transmission setting forth the name of a majority in the Holder, the principal amount of the then outstanding NotesNote 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
Sources: Indenture (Tetra Technologies Inc), Indenture (Compressco Partners, L.P.)
Asset Sales. (a) The Company will not, and will not permit any Restricted Subsidiary of the Subsidiaries to, consummate an Asset Salesell, unlesstransfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it, nor will the Company permit any of its Subsidiaries to issue any additional Equity Interest in such Subsidiary, except:
(1a) sales of inventory, obsolete or surplus equipment and Permitted Investments in the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way ordinary course 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; andbusiness;
(2b) except in the case of a Permitted Asset Swapsales, 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, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent 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 liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 transfers and dispositions to the Company or a Restricted Subsidiary); provided that any such sales, transfers or dispositions involving a Subsidiary that is not a Designated Subsidiary shall be made in compliance with Section 6.08;
(Bc) sales of accounts receivable and the Proceeds thereof under any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset SaleSecuritization;
(Cd) the sale, transfer or other disposition of Pharmerica and its subsidiaries, or their assets, in the Pharmerica Spin-Off; and
(e) sales, transfers and other dispositions of assets that are not permitted by any Designated Non-Cash Consideration received by other clause of this Section (including pursuant to sale and leaseback transactions); provided that the Company or a Restricted Subsidiary in such Asset Sale having an aggregate fair market valuevalue of all assets sold, taken together with all other Designated Non-Cash Consideration received pursuant to transferred or otherwise disposed of in reliance upon this clause (Cd) that is shall not exceed, at that time outstandingany time, not to exceed the greater of (i) $400.0 million and (ii) 5.020% of Adjusted the Consolidated Net Tangible Assets of the Company at and the time Subsidiaries, as reflected on a consolidated balance sheet of the receipt Company as of such Designated Non-Cash Consideration, with the fair market value last day of each item of Designated Non-Cash Consideration being measured, at the Company’s option, either at the time of contractually agreeing most recent fiscal quarter for which financial statements shall have been delivered pursuant to such Asset Sale or at the time received andSection 5.01(a) and (b); provided that, in either casethe event the Pharmerica Spin-Off is consummated and only for purposes of the preceding calculation, without giving effect to subsequent changes in value;
(D) Indebtedness the Consolidated Tangible Assets 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 the Subsidiaries as of the principal amount last day of the fiscal quarter immediately preceding the Pharmerica Spin-Off shall be calculated on a pro forma basis for the consummation of the Pharmerica Spin-Off as if it had occurred on the last day of such Indebtedness in connection with such Asset Sale;
(E) any Investment, Capital Stock, assets, property or capital or other expenditure of fiscal quarter immediately preceding the kind referred to in Section 4.10(b)(2); and
(F) with respect to any Asset Sale of Oil and Gas Properties disposed of by the Company or any Restricted Subsidiary quarter in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof)Pharmerica Spin-Off is consummated.
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 2 contracts
Sources: Credit Agreement (Amerisourcebergen Corp), Credit Agreement (Amerisourcebergen Corp)
Asset Sales. (a) The Company will not, and will not permit any Restricted Subsidiary to, consummate an Asset Sale, unless:
(1) 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 the Issue Date (on a cumulative basis), received by the Company or a Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2clause (2):
(A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes 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 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 liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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) $400.0 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)(24.15(b)(2); and
(F) with respect to any Asset Sale of Oil and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such the Net Proceeds (the “Applicable Proceeds”):from such Asset Sale:
(1) (a) if the Asset Sale is a disposition of Collateral, to repay, prepay, redeem or repurchase:
repurchase First Lien Obligations or Second Lien Obligations (Aprovided that with respect to Second Lien Obligations, such repayment, prepayment, redemption or repurchase must be made either by a pro rata redemption or repayment of outstanding Second Lien Obligations (including the Notes) or by an offer to purchase on a pro rata basis made to all holders of Second Lien Obligations in respect (including Holders of the Notes)); (b) if the Asset Sale is not a disposition of Collateral, to repay, prepay, redeem or repurchase Senior Indebtedness; or
Indebtedness of the Company or any Restricted Subsidiary or (Bc) Obligations in respect of to repay, prepay, redeem or repurchase Indebtedness of a Restricted Subsidiary that is does not a GuarantorGuarantee the Notes, other than Obligations owed to so long as the Company or a Restricted relevant assets were assets of such Subsidiary; or;
(2) to make (a) an Investment in any one or more 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, (cb) other expenditures made with respect to Oil and Gas Properties, (dc) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or Capital Stock of businesses or entities or (ed) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securitiessecurities and other than assets classified as current assets under GAAP, in the case of clauses
clause (a) (dc) and this clause (ed), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable 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 Applicable Net Proceeds); provided, further, that if any such commitment is later cancelled or terminated for any reason before such Applicable Net Proceeds are applied, then such Applicable Net Proceeds will constitute Excess Proceeds; provided, further, that the assets acquired (including Equity Interests) with the Net Proceeds (from an Asset Sale of Collateral are pledged as defined below)Collateral to the extent required under the Security Documents and in accordance with this Indenture substantially simultaneously with such acquisition and perfected within the time frames required by the applicable Security Documents; or
(3) any combination of the foregoing.
(c) Pending the final application of the amount of any Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Net Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b4.15(b) will be deemed to constitute “Excess Proceeds”. .” When the aggregate amount of Excess Proceeds exceeds $50.0 25.0 million, the Company Issuers will make an offer (an “Asset Sale Offer”) to all Holders andand (i) in respect of Excess Proceeds of an Asset Sale of Collateral, if required by the terms of any Second Lien Obligations, to the holders of such Second Lien Obligations, and (ii) in respect of other Excess Proceeds, at the option of the CompanyIssuers, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), in each case to purchase the maximum aggregate principal amount of the Notes and such Pari Passu other Indebtedness that is in an amount equal to 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, if less), plus accrued and unpaid interest, if any (or, in respect of such Pari Passu other Indebtedness, such other price, if any, as may be provided for by the terms of such Pari Passu Indebtednessthereof), to, but excluding, the date fixed for the closing of such offer, in accordance with the procedures set forth in Section 3.09 this Indenture (or, in respect of such Pari Passu other Indebtedness, the agreement or instrument governing the terms thereof). .
(d) The Company Issuers will commence an Asset Sale Offer with respect to Excess Proceeds within 30 days after the date that the amount of Excess Proceeds exceeds $50.0 25.0 million by mailing or electronically delivering the notice required pursuant to Section 3.09the terms of this Indenture, with a copy to the Trustee, or otherwise in accordance with Applicable Proceduresthe procedures of the Depositary. The Company Issuers may satisfy the foregoing obligation with respect to any Applicable 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 Applicable 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 Applicable 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 Notes, such Second Lien Obligations 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 Notes, Second Lien Obligations 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, Trustee will select the Notes to be purchased in the manner described under in Section 3.02 and the Company Issuers will select such Second Lien Obligations or Pari Passu Indebtedness to be purchased pursuant to the terms of such Second Lien Obligations or Pari Passu Indebtedness; provided that as between the Notes Notes, any Second Lien Obligations 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 Notes, such Second Lien Obligations or such Pari Passu Indebtedness tendered with adjustments as necessary so that no Notes Notes, Second Lien Obligations 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 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). To the extent that any portion of Net Proceeds payable in respect of the Notes is denominated in a currency other than U.S. dollars, the amount thereof payable in respect of the Notes shall not exceed the net amount of funds in U.S. dollars that is actually received by the Issuer upon converting such portion into U.S. dollars. Pending the final application of any Net Proceeds pursuant to this Section 4.15, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Credit Facility.
(e) [Reserved]Notwithstanding any other provisions of this Section 4.15, (i) to the extent that any of or all the Net Proceeds of any Asset Sales by a Foreign Subsidiary after the Issue Date (a “Foreign Disposition”) is prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Proceeds so affected will not be required to be applied in compliance with this Section 4.15, and such amounts may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation to the United States (the Issuers hereby agreeing to use reasonable efforts (as determined in the Issuer’s reasonable business judgment) to otherwise cause the applicable Foreign Subsidiary to promptly 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 Net Proceeds is permitted under the applicable local law, such repatriation will be promptly effected and such repatriated Net Proceeds will be promptly (and in any event not later than five Business Days after such repatriation could be made) applied (net of additional taxes payable or reserved against as a result thereof) (whether or not repatriation actually occurs) in compliance with this Section 4.15 and (ii) to the extent that the Issuers have determined in good faith that repatriation of any of or all the Net Proceeds of any Foreign Disposition would have a material adverse tax cost consequence (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation) with respect to such Net Proceeds (which for the avoidance of doubt, includes, but is not limited to, any prepayment whereby doing so the Company, any Restricted Subsidiary or any of their respective affiliates and/or equity partners would incur a tax liability, including as a result of a dividend or a deemed dividend pursuant to Code Section 956, or a withholding tax), the Net Proceeds so affected may be retained by the applicable Foreign Subsidiary; provided that when the Issuers determine in good faith that repatriation of any of such Net Proceeds would no longer have a material adverse tax cost consequence (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation), such amount at such time shall no longer be retained by the applicable Foreign Subsidiary. The non-application of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default.
(f) The Company Asset Sale Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Sale Offer Period”). No later than five Business Days after the termination of the Asset Sale Offer Period (the “Asset Sale Purchase Date”), the Issuers will apply all Excess Proceeds to the purchase of the aggregate principal amount of Notes and, if applicable, Pari Passu Indebtedness (on a pro rata basis, if applicable) required to be purchased pursuant to this Section 4.15 (the “Asset Sale Offer Amount”), or, if less than the Asset Sale Offer Amount of Notes (and, if applicable, Pari Passu Indebtedness) has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments on the Notes are made.
(g) If the Asset Sale Purchase Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest up to but excluding the Asset Sale Purchase Date, shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date.
(h) The Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 2 contracts
Sources: Senior Secured Second Lien Notes Indenture (Talos Energy Inc.), Senior Secured Second Lien Notes Indenture (EnVen Energy Corp)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1) the Company or such the Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such the Asset Sale) Sale at least equal to the fair market value Fair Market Value (measured at as of the time date of contractually agreeing the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration for received in 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, Sale is in the form of cash or Cash Equivalents; provided that each any of the following will items shall be deemed to be cash or and Cash Equivalents for the purposes of this Section 4.10(a)(2clause (2):
(Aa) the assumption of any liabilities (as shown on the Company’s or any the Restricted Subsidiary’s most recent 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 of the Company (other than liabilities that are by their terms subordinated in right of payment to the Notes issued under this Indenture or any Guarantor’s Guarantee of the Notes, that are (iSubsidiary Guarantee) assumed by the transferee of any such assets (or pursuant to 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 customary novation agreement that releases the Company or a the Restricted Subsidiary)Subsidiary from further liability;
(Bb) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a the Restricted Subsidiary into cash or Cash Equivalents, or by Equivalents within 180 days following their terms are required to be satisfied for cash or Cash Equivalents receipt (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;); and
(Cc) any Designated Non-Cash Consideration received by the Company stock 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) $400.0 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 assets of the kind referred to in Section 4.10(b)(2); and
(F) with respect to any Asset Sale of Oil and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
clauses (b) and (d) of the next paragraph of this Section 4.10. Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or a the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or repurchase:
(Aa) Obligations in respect of Senior Indebtedness; or
(B) Obligations in respect of to prepay, repay, purchase, repurchase or redeem any secured Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Obligations owed to the Company or a Restricted Subsidiary; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties the Company;
(including fee and leasehold interestsb) to acquire a controlling interest in another business or (e) acquisitions by all or substantially all of the Company assets or any Restricted Subsidiary operating line of other assets, other than securitiesanother business, in the each case of clausesengaged in a Permitted Business;
(ac) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is later cancelled or terminated for any reason before such Applicable Proceeds are applied, then such Applicable Proceeds will constitute Excess Proceeds (as defined below)make capital expenditures; or
(3d) any combination of the foregoing.
(c) to acquire other non-current assets to be used in a Permitted Business. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantsuch Net Proceeds, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, Indebtedness under any Credit Facility or otherwise use expend or invest such Applicable Net Proceeds in any manner that is not prohibited by the this Indenture.
(d) The amount equal to the Applicable . Any Net Proceeds from Asset Sales described in this paragraph that are not applied or invested or applied as provided and within in the time period set forth in first sentence of this paragraph of this Section 4.10(b) will 4.10 shall be deemed to constitute “Excess Asset Sale Proceeds”. .” When the aggregate amount of Excess Asset Sale Proceeds exceeds $50.0 10.0 million, the Company will be required under this Indenture to make an offer to all the Holders and, at of Notes issued thereunder and the option of the Company, to any holders of any other Senior Indebtedness that is pari passu subject to requirements with respect to the Notes application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), ) to purchase on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the Holders of the Notes and such holders of such other Senior Indebtedness based upon outstanding aggregate principal amounts) the maximum aggregate principal amount of the Notes and such Pari Passu other Senior Indebtedness that is in an amount equal to at least $2,000, or an integral multiple of $1,000 in excess of $2,000, that may be purchased or prepaid, as applicable, out of the prorated Excess Proceeds Asset Sale Proceeds, at an offer price, in the case of the Notes, price in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, 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 provided for by the terms of such Pari Passu Indebtedness), to, but excluding, interest thereon to the date fixed for the closing of such offerpurchase, 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). The Company will commence an Asset Sale 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”)Indenture. To the extent that the aggregate principal amount of Notes and other Senior Indebtedness tendered (and electing to be redeemed or accreted valuerepaid, 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)Asset Sale Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Asset Sale Proceeds (or in the case of an Advance Offer, the Advance Portion) in for general corporate purposes and any manner other purpose not prohibited by this Indenture. If Upon completion of the aggregate principal amount (or accreted valueoffer to purchase, 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 shall 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 Indentureat zero. An Asset Sale Offer or Advance Offer may be made at 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 such laws or and regulations are applicable in connection with 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 the provisions of this IndentureSection 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to under this Section 4.10 may be waived or modified with the written consent by virtue of the Holders of a majority in principal amount of the then outstanding NotesCompany’s compliance with such securities laws or regulations.
Appears in 2 contracts
Sources: Indenture (Global Geophysical Services Inc), Indenture (Global Geophysical Services Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such the Asset Sale) Sale at least equal to the fair market value (measured at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or Capital Stock issued or sold or otherwise disposed of; and
(2ii) except in the case of a Permitted Asset Swap, at least 75% of the consideration for such received in the Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), received Sale by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that cash. For purposes of this provision (but not the definition of Net Proceeds), each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(A) Cash Equivalents;
(B) any liabilities (liabilities, as shown on the Company’s or any Restricted Subsidiary’s 's most recent balance sheet or in the notes thereto or, if incurred or accrued subsequent to the date of such consolidated 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 Guarantor’s Guarantee of the Notes, ) that are (i) assumed by the transferee of any such assets (or pursuant to 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 customary assumption agreement that releases the Company or a such Restricted Subsidiary)Subsidiary from further liability;
(BC) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such that are, within 180 days of the Asset Sale (including earnouts and similar obligations) that are Sale, converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalentscash, 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 Salereceived in that conversion;
(C) 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) $400.0 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company (or a the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or repurchase:
(Ai) Obligations in to repay or prepay Indebtedness of the Company or its Restricted Subsidiaries and, if such Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect of Senior Indebtednessthereto; or
(Bii) Obligations to acquire (or enter into a definitive agreement to acquire, the Closing of which is expected to occur no later than 455 days following the receipt of such Net Proceeds) all or substantially all of the assets of, or any Capital Stock of, another Person engaged in respect a Permitted Business, if, after giving effect to any such acquisition of Indebtedness of Capital Stock, such Person is or becomes a Restricted Subsidiary that is not a Guarantor, other than Obligations owed to the Company or a Restricted Subsidiary; or
(2) to make (a) an Investment in any one or more businesses; provided that such Investment in any business is in the form of the acquisition Company, or to invest in productive assets of Capital Stock and results in the Company a kind used 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 Properties, (d) acquisitions useable by the Company or its Restricted Subsidiaries in a Permitted Business. Pending the final application of any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and manner that is not prohibited by this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 foregoingIndenture.
(c) Pending the final application of the amount of any Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Any Net Proceeds from Asset Sales that are not applied or invested or applied as provided and within the time period set forth in Section 4.10(b4.09(b) will be deemed to constitute “Excess Proceeds”"EXCESS PROCEEDS". When the aggregate amount of Excess Proceeds exceeds $50.0 10.0 million, within 20 Business Days thereof, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided for by the terms of such Pari Passu Indebtedness), to, but excluding, the date fixed for the closing of such offer, Offer in accordance with the procedures set forth in Section 3.09 (or, 3.14 to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in respect of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). The Company will commence an Asset Sale Offer this Indenture with respect to Excess Proceeds within 30 days after offers to purchase or redeem with the date that the amount proceeds 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 sales of assets 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 Section 3.14 hereof 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 maximum principal amount (or accreted value, as applicable) of Notes and such Pari Passu other pari passu Indebtedness tendered pursuant that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest to the date of purchase and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer is less than the Excess Proceeds (or in the case of an Advance Offer, the Advance Portion), the Company and its Restricted Subsidiaries may use any remaining those Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in for any manner purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of the Notes and/or the Pari Passu and other pari passu Indebtedness surrendered in an tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, will Trustee shall select the Notes to be purchased in the manner described under Section 3.02 and the Company will select such Pari Passu other 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 denominationbasis. Upon completion of any such each 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 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)zero.
(e) [Reserved].
(fd) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws or and regulations are applicable in connection with the each 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 the provisions of Section 3.14 hereof or this IndentureSection 4.09, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in under Section 3.14 hereof or this Indenture Section 4.09 by virtue thereofof such compliance.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 2 contracts
Sources: Indenture (PRG Schultz International Inc), Indenture (PRG Schultz International Inc)
Asset Sales. (a) The Company will notNo Guarantor will, and will the Company shall cause the Guarantors not permit any Restricted Subsidiary to, consummate in a single transaction or a series of related transactions, sell, lease, assign, transfer, convey or otherwise dispose of any Collateral owned by such Guarantor (including through the sale by the Company or its Subsidiaries of the Equity Interests of any Guarantor) (each of the forgoing, an “Asset Sale”); provided that the following shall not be deemed an Asset Sale, unless:
(1) the Company sale, lease, assignment, transfer, conveyance or such Restricted Subsidiary, as the case may be, receives consideration (including by way other disposition of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Collateral at least equal to no less than 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, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent 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 liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted Subsidiary into Collateral for cash or Cash Equivalents, so long as, on a pro forma basis for such sale, lease, conveyance or by their terms are required other disposition, the First Lien LTV Ratio is not greater than 0.375 to be satisfied for cash or Cash Equivalents (to 1.00; provided that the extent Appraised Value of the cash Collateral sold, leased, transferred or Cash Equivalents received) within 180 days following the closing otherwise disposed of such Asset Sale;
(C) 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 sub-clause (C1) that is at that time outstanding, shall not exceed $9.5 billion in the aggregate (with the aggregate value of such Collateral for purposes of calculating utilization of this basket being determined pursuant to exceed the greater of (i) $400.0 million and (ii) 5.0% of Adjusted Consolidated Net Tangible Assets of the Company definition “Appraised Value” 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, consummation thereof without giving any 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 value of the principal amount of such Indebtedness in connection with such Asset Sale;
(E) any Investment, Capital Stock, applicable 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if no such sale, lease, assignment, transfer conveyance or other disposition shall be made to any Affiliate of such commitment Guarantor other than another Guarantor or a Spectrum Joint Venture; provided, further, that any sale, assignment, transfer, conveyance or disposition of any Collateral to a Spectrum Joint Venture (a) shall be made at no less than the Appraised Value of such Collateral for cash and (b) any Net Proceeds or Specified Net Proceeds resulting therefrom shall be applied as set forth under this Section 4.13;
(2) the sale, lease, assignment, transfer, conveyance or other disposition of any Collateral between or among the Guarantors; provided that the applicable Guarantor receiving Collateral shall have concurrently therewith executed any and all documents, financing statements, agreements and instruments, and taken all further action that may be required under applicable law (to the extent required under this Indenture and/or the Security Documents) in order to grant and perfect a first-priority Lien in such Collateral for the benefit of the Holders;
(3) a disposition resulting from any condemnation or other taking, or temporary or permanent requisition of, any property or asset, any interest therein or right appurtenant thereto, in each case, as the result of the exercise of any right of condemnation or eminent domain, including any sale or other transfer to a governmental authority in lieu of, or in anticipation of, any of the foregoing events; and
(4) any Permitted Asset Swap.
(b) Within 45 days after receipt of any Net Proceeds or, Specified Net Proceeds, as applicable, such Guarantor shall:
(1) so long as any aggregate principal amount of the New Senior Spectrum Secured Notes remain outstanding, apply the Required Amount of such Net Proceeds and Specified Net Proceeds to redeem New Senior Spectrum Secured Notes; provided that the Company shall redeem New Senior Spectrum Secured Notes in the following order:
(A) first, up to $1.5 billion in aggregate principal amount of the New Senior Spectrum Secured Notes at a redemption price not to exceed 103% plus accrued and unpaid interest in accordance with the New Senior Spectrum Secured Notes Indenture,
(B) second, up to $500 million in aggregate principal amount of the New Senior Spectrum Secured Notes at a redemption price not to exceed 105% plus accrued and unpaid interest in accordance with the New Senior Spectrum Secured Notes Indenture; and
(C) third, New Senior Spectrum Secured Notes at a redemption price not to exceed (A) during the period prior to the date that is later cancelled two years after the Issue Date, par plus 60% of the make-whole premium that would be payable pursuant to the make-whole optional redemption provisions under the New Senior Spectrum Secured Notes or terminated for any reason before (B) thereafter, the then-applicable redemption price specified in the New Senior Spectrum Secured Notes Indenture as in effect on the Issue Date;
(2) apply the Required Amount of such Applicable Net Proceeds are applied, then such Applicable and Specified Net Proceeds will constitute Excess Proceeds (as defined below)to redeem New Exchange Notes pursuant to Section 3.07(c) of the New Exchange Notes Indenture; or
(3) any combination of the foregoing.
(c) Pending the final application of the amount of any Applicable . Any Net Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Specified Net Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or required to be applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to at least $2,000, or an integral multiple of $1,000 in excess of $2,000, that above 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, if less), plus accrued and unpaid interest, if used for any (or, in respect of such Pari Passu Indebtedness, such other price, if any, as may be provided 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). The Company will commence an Asset Sale 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 purpose 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 subject 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 other covenants contained 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 2 contracts
Sources: Indenture (DISH Network CORP), Indenture (SNR Wireless LicenseCo, LLC)
Asset Sales. (a) The Company will not, and Borrower will not permit convey, sell, lease, transfer, or otherwise dispose of, in one transaction or a series of transactions, any Restricted Subsidiary to, consummate an Asset Sale, unless:
assets unless (1x) the Company or such Restricted Subsidiary, as the case may be, Borrower 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 the time equal to the fair market value greater of (measured at A) the time Fair Market Value of contractually agreeing the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to such Asset Sale) the invested cost of the assets sold or otherwise disposed of; and
, less depreciation and (2y) except in the case of a Permitted Asset Swap, at least 75% ninety percent of the consideration for such Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), therefor received by the Company or a Restricted Subsidiary, as the case may be, Borrower is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof; provided, that, notwithstanding the foregoing, the following will be permitted:
(i) any single transaction or series of related transactions that involves assets having a Fair Market Value of less than $200,000,000;
(ii) the sale or other disposition of cash or Cash Equivalents;
(iii) a grant of a Lien not prohibited by this Agreement;
(iv) a Distribution that does not violate Section 5.10;
(v) sales, transfers, or other dispositions of Permitted Investments;
(vi) transfers or novations of Senior Secured IR Hedge Agreements;
(vii) the sale or other disposition of assets that are obsolete, worn-out, damaged, surplus, or not used or useful in the conduct of the Borrower’s business;
(viii) any single transaction or series of related transactions pursuant to, or contemplated by, the terms of an agreement existing on the date of this Agreement (including, for the avoidance of doubt, any contribution of Common Facilities to CFCo pursuant to the RG Facility Agreements);
(ix) disposals of materials developed or obtained in the excavation or other operations of any construction contractor pursuant to the construction contract related to the Project;
(x) settlements, releases, waivers or surrenders of contract, tort or other claims in the ordinary course of business;
(xi) conveyances of gas interconnection or metering facilities to gas transmission companies and conveyances of electricity substations to electricity providers pursuant to its electricity purchase arrangements for operating the Rio Grande Facility;
(xii) the AEP Land Release;
(xiii) sales or other dispositions of LNG, Gas, or natural gas liquids (or other commercial products) in accordance with the Project Documents;
(xiv) dispositions of assets in compliance with any applicable court or governmental order;
(xv) non-exclusive licenses, covenants not to sue, releases, waivers, or other rights under intellectual property, in each case, granted in the ordinary course of business in connection with the construction or operation of the Project as contemplated by the Transaction Documents;
(xvi) dispositions of other Property if the Borrower has obtained a binding commitment to replace such Property, and replaces such Property, within 270 days after such disposition; provided that and
(xvii) sales of liquefaction and other services in the ordinary course of business.
(b) For purposes of this Section 5.3, each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
cash: (Ai) any liabilities (liabilities, as shown on the Company’s or any Restricted SubsidiaryBorrower’s most recent consolidated balance sheet (or in as would be shown on the notes thereto or, if incurred or accrued subsequent to Borrower’s consolidated balance sheet as of the date of such balance sheetAsset Sale), 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, Borrower (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, Senior Secured Debt) that are (i) assumed by the transferee of any such assets (or pursuant to a third party in connection with such transfer) or written novation agreement that releases the Borrower from further liability therefor and (ii) otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or a Restricted Subsidiary);
(B) any securities, notes notes, or other obligations or assets received by the Company or a Restricted Subsidiary Borrower from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted Subsidiary Borrower into cash or Cash EquivalentsEquivalents within ninety days after such Asset Sale, 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;
(C) 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) $400.0 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof)conversion.
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 2 contracts
Sources: Common Terms Agreement (NextDecade Corp), Common Terms Agreement (NextDecade Corp)
Asset Sales. (a) The Company will shall not, and will shall not permit any of the Restricted Subsidiary Subsidiaries to, consummate cause or make an Asset Sale, unless:
unless (1x) the Company or such any Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value Fair Market Value (measured at as determined in good faith by the time of contractually agreeing to such Asset SaleCompany) of the assets sold or otherwise disposed of; and
, and (2y) 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), therefor received by the Company or a such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):amount of:
(Ai) any liabilities (as shown on the Company’s or any a Restricted Subsidiary’s most recent 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 Companythereto) of the Company or any a Restricted Subsidiary, Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, Guarantee) that are (i) assumed by the transferee of any such assets (or a third party in connection with such transfer) or (ii) that are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or a Restricted Subsidiary);transferee,
(Bii) any securities, notes or other obligations or other securities or assets received by the Company or a such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;),
(C) 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) $400.0 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;
(Diii) Indebtedness of any Restricted Subsidiary that ceases to be is no longer a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or a Restricted Subsidiary)Sale, to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such the Asset Sale;,
(Eiv) any Investment, Capital Stock, assets, property or capital or other expenditure consideration consisting of Indebtedness of the kind referred to in Section 4.10(b)(2); Company (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company or any Restricted Subsidiary, and
(Fv) with respect to any Asset Sale of Oil and Gas Properties disposed of Designated Non-cash Consideration received by the Company or any Restricted Subsidiary in which such Asset Sale having an aggregate Fair Market Value (as determined in good faith by the Company or any Restricted Subsidiary retains an interestCompany), taken together with all other Designated Non-cash Consideration received pursuant to this Section 4.06(a)(v) that is at that time outstanding, not to exceed the costs greater of $400 million and expenses related to 25% of Consolidated EBITDA at the exploration, development, completion or production time of the receipt of such Oil Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and Gas Properties and activities related thereto agreed without giving effect to subsequent changes in value), shall be deemed to be assumed by Cash Equivalents for the transferee (or an Affiliate thereofpurposes of this Section 4.06(a).
(b) Within 365 days after the Company’s or any Restricted Subsidiary’s receipt of any the Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or a such Restricted SubsidiarySubsidiary may apply the Net Proceeds from such Asset Sale, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or repurchase:
(i) to repay (A) Obligations in Indebtedness constituting Bank Indebtedness and other Pari Passu Indebtedness that is secured by a Lien permitted under this Indenture (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect of Senior Indebtedness; or
thereto), (B) Obligations in respect of Indebtedness of a Restricted Subsidiary that is not a Guarantor, (C) Obligations under the Notes or (D) other Pari Passu Indebtedness (provided that if the Company or any Guarantor shall so reduce Obligations under unsecured Pari Passu Indebtedness under this clause (D), the Company will equally and ratably reduce Notes Obligations pursuant to Section 3.01, through open-market purchases (provided that such purchases are at or above 100% of the principal amount thereof or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all holders of Notes to purchase such holder’s Notes at a purchase price equal to 100% of the principal amount thereof (or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest), in each case other than Obligations Indebtedness owed to the Company or a Restricted Subsidiaryan Affiliate of the Company; or
(2ii) to make (a) an Investment investment in any one or more businesses; businesses (provided that if such Investment in any business investment is in the form of the acquisition of Capital Stock and of a Person, such acquisition results in the Company or any such Person becoming a Restricted Subsidiary owning an amount of the Capital Stock of such business such that it constitutes Company), assets, or continues to constitute a Restricted Subsidiary, (b) property or capital expenditures, in each case (cA) other expenditures made with respect to Oil and Gas Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas a Similar Business or (iiB) that replace, in whole or in part, replace the properties or and assets that are the subject of such Asset Sale; provided that in Sale or to reimburse the cost of any of the foregoing incurred on or after the date on which the Asset Sale giving rise to such Net Proceeds was contractually committed. In the case of this clause (2Section 4.06(b)(ii), a binding commitment will shall be treated as a permitted application of the Applicable Net Proceeds from the date of such commitment until the 18-month anniversary of the date of the receipt of such Net Proceeds; provided that in the event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so long as applied, then such Net Proceeds shall constitute Excess Proceeds unless the Company or a such Restricted Subsidiary enters into such another binding commitment with the good faith expectation that such Applicable Proceeds will be applied to satisfy such commitment (a “Second Commitment”) within 180 days six months of such commitment (or, if later, 365 days after cancellation or termination of the receipt of such Applicable Proceeds)prior binding commitment; provided, further, that if any the Company or such commitment Restricted Subsidiary may only enter into a Second Commitment under the foregoing provision one time with respect to each Asset Sale and to the extent such Second Commitment is later cancelled or terminated for any reason before such Applicable Net Proceeds are appliedapplied or are not applied within 180 days of such Second Commitment, then such Applicable Net Proceeds will shall constitute Excess Proceeds (as defined belowin each case subject to the proviso to the first sentence in the immediately succeeding paragraph); or
(3) any combination of the foregoing.
(c) . Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantsuch Net Proceeds, the Company and its or such Restricted Subsidiaries Subsidiary may temporarily reduce IndebtednessIndebtedness under a revolving credit facility, if any, or otherwise use invest such Applicable Net Proceeds in any manner not prohibited by the this Indenture.
(d) The amount equal to the Applicable . Any Net Proceeds from any Asset Sales Sale that are not invested or applied as provided and within the time period set forth in the first sentence of this Section 4.10(b4.06(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes, as described in clause (i) of this Section 4.06(b), shall be deemed to have been invested whether or not such offer is accepted) will be deemed to constitute “Excess Proceeds”; provided, that no Net Proceeds which would otherwise constitute “Excess Proceeds” shall constitute Excess Proceeds in any fiscal year until the aggregate amount of all such Net Proceeds in such fiscal year shall exceed $200 million (and thereafter only Net Proceeds in excess of such amount shall constitute Excess Proceeds). When the aggregate amount of Excess Proceeds exceeds $50.0 100 million, the Company will shall make an offer to all Holders holders of Notes (and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“other Pari Passu Indebtedness” and such offer, ) (an “Asset Sale Offer”), ) to purchase the maximum aggregate principal amount of the Notes (and such other Pari Passu Indebtedness Indebtedness) that is in an amount equal to at least $2,000, or 2,000 and an integral multiple of $1,000 in excess of $2,000, thereof that may be purchased out of the Excess Proceeds at an offer price, in the case of the Notes, price in cash in an amount equal to 100% of the principal amount thereof (or, in the event the Notes or other Pari Passu Indebtedness were issued with significant original issue discount, 100% of the accreted value thereof, if less), plus accrued and unpaid interest, if any interest (or, in respect of such other Pari Passu Indebtedness, such other lesser price, if any, as may be provided for by the terms of such other 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)Indenture. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within 30 days ten (10) Business Days after the date that the amount of Excess Proceeds exceeds $50.0 100 million by mailing mailing, or delivering electronically delivering if held by the Depository, the notice required pursuant to Section 3.09the terms of the Indenture, 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 other Pari Passu Indebtedness 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 that the Company will select such Pari Passu Indebtedness has offered to be purchased purchase 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 that is not otherwise prohibited under this by the Indenture. An Upon completion of any such Asset Sale Offer or Advance Offer may Offer, the amount of Excess Proceeds shall be made reset at 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)zero.
(e) [Reserved].
(fc) The Company will comply comply, to the extent applicable, with the requirements of Rule 14e-1 under Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer or Advance Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(gd) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.06(b). On such date, the Company shall also irrevocably deposit with the Trustee or the Paying Agent (or, if the Company or a Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in writing by the Company and to be held for payment in accordance with the provisions of this Section 4.06. The Company’s obligation Trustee shall have the right to make open an offer account for purposes of receiving such Excess Proceeds. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Company shall deliver to repurchase the Trustee for cancellation the Notes pursuant or portions thereof that have been properly tendered to and are to be accepted by the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee are greater than the purchase price of the Notes tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.10 may 4.06.
(e) Holders electing to have a Note purchased shall be waived required to surrender such Note, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or modified with the written consent Company receives not later than one Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holders of a majority in holder, the principal amount of the then outstanding NotesNote which was delivered by the holder for purchase and a statement that such holder is withdrawing his election to have such Note purchased. If more Notes (and such other Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, such Notes shall be selected for purchase in such manner as complies with the requirements of the Depository; provided that no Notes of $2,000 or less shall be purchased in part and all purchases shall be in integral multiples of $1,000. Selection of such other Pari Passu Indebtedness shall be made pursuant to the terms of such other Pari Passu Indebtedness.
(f) Notices of an Asset Sale Offer shall be mailed by the Company by first class mail, postage prepaid, or delivered electronically if held by the Depository, at least 30 but not more than 60 days before the purchase date to each holder of Notes at such holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 2 contracts
Sources: Indenture (XPO Logistics, Inc.), Indenture (XPO Logistics, Inc.)
Asset Sales. (a) The Company will not, and will not permit any Restricted Subsidiary to, consummate an Asset Sale, unless:
(1) 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 the Issue Date (on a cumulative basis), received by the Company or a Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent 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 liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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) $400.0 50.0 million and (ii) 5.05% 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such the Net Proceeds (the “Applicable Proceeds”):from such Asset Sale:
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
clauses (a) (da),(d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable 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 Applicable Net Proceeds); provided, further, that if any such commitment is later cancelled or terminated for any reason before such Applicable Net Proceeds are applied, then such Applicable Net 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 Applicable Net Proceeds pursuant to this covenant, the Company Issuers and its their Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Net Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Net Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company Issuers will make an offer to all Holders and, at the option of the CompanyIssuers, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company Issuers will commence an Asset Sale 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 Issuers may satisfy the foregoing obligation with respect to any Applicable 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 Applicable 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 Applicable 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 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) 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(g) The Company’s Issuers’ obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 2 contracts
Sources: Indenture (Vine Energy Inc.), Indenture (Vine Resources Inc.)
Asset Sales. (a) The Company will Lessee shall not, and will shall not permit any of the Restricted Subsidiary Subsidiaries to, consummate (i) sell, lease, convey or otherwise dispose of any assets (including by way of a sale-and-leaseback) other than sales of inventory in the ordinary course of business consistent with past practice (provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of Lessee shall be governed by the provisions of Section 5.19 hereof and not by the provisions of this Section 5.18), or (ii) issue or sell Equity Interests of any of its Subsidiaries, in the case of either clause (i) or (ii) above, whether in a single transaction or a series of related transactions, (A) that have a fair market value in excess of the lesser of $10,000,000 or the amount (which amount is equal to $5,000,000 as of the Effective Date) specified in Section 4.10 of the 1996 Indenture as amended from time to time (such lesser amount, the "Applicable Amount"), or (B) for net proceeds in excess of the "Applicable Amount" (each of the foregoing, an "Asset Sale"), unless:
unless (1X) Lessee (or the Company or such Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at evidenced by a resolution of the time board of contractually agreeing directors of the General Partner (and, if applicable, the audit committee of such board of directors) set forth in a certificate signed by a Responsible Officer and delivered to such Asset SaleAgent) of the assets sold or otherwise disposed of; and
of and (2Y) except in the case of a Permitted Asset Swap, at least 7580% of the consideration for such Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), therefor received by the Company Lessee or a Restricted Subsidiary, as the case may be, such Subsidiary is in the form of cash or Cash Equivalentscash; provided provided, however, that each the amount of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A1) any liabilities (as shown on the Company’s Lessee's or any Restricted such Subsidiary’s 's most recent balance sheet or in the notes thereto orthereto), 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 Lessee or any Restricted Subsidiary, Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of Obligations hereunder and under the Notes, other Operative Documents) that are (i) assumed by the transferee of any such assets and (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 the Company or a Restricted Subsidiary);
(B2) any securities, notes or other obligations or assets received by the Company Lessee or a Restricted any such Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are immediately converted by the Company Lessee or a Restricted such Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following ), shall be deemed to be cash for purposes of this provision; and provided, further, that the closing of such Asset Sale;
(C) any Designated Non-Cash Consideration received by the Company or a Restricted Subsidiary 80% limitation referred to in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (CY) that is at that time outstanding, shall not to exceed the greater of (i) $400.0 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 apply to any Asset Sale of Oil and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company cash portion of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (w) sales or transfers of accounts receivable by Lessee to an SPE and by an SPE to any other Person in connection with any Accounts Receivable Securitization permitted by Section 5.21 (provided that the aggregate amount of such accounts receivable that shall have been transferred to and held by all SPEs at any time shall not exceed 133% of the amount of Accounts Receivable Securitizations permitted to be outstanding under Section 5.21), (x) any transfer of assets by Lessee or any Restricted Subsidiary retains an interest, the costs and expenses related of its Subsidiaries to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company Lessee or a Restricted Subsidiary, at (y) any transfer of assets by Lessee or any of its option, may apply an amount equal Subsidiaries to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or repurchase:
(A) Obligations any Person in respect exchange for other assets used in a line of Senior Indebtedness; or
(B) Obligations in respect of Indebtedness of business permitted under Section 5.31 and having a Restricted Subsidiary fair market value not less than that is not a Guarantor, other than Obligations owed to the Company or a Restricted Subsidiary; or
(2) to make (a) an Investment in any one or more businesses; provided that such Investment in any business is in the form of the acquisition assets so transferred and (z) any transfer of Capital Stock and results in the Company assets pursuant to a Permitted Lessee Investment or any Restricted Subsidiary owning an amount sale-leaseback (including sale-leasebacks involving Synthetic Leases) permitted by Section 5.33. Notwithstanding the foregoing, Lessee may not sell, lease, convey or otherwise dispose 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 Properties, (d) acquisitions any Unit except as permitted by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 foregoingLease.
(c) Pending the final application of the amount of any Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 2 contracts
Sources: Omnibus Amendment Agreement (Ferrellgas Partners Finance Corp), Participation Agreement, Lease Intended as Security, Loan Agreement (Ferrellgas Partners Finance Corp)
Asset Sales. (a) Other than in connection with any transaction that is part of the Reorganization or as may be permitted by Section 8.07(b), the Company will not, and will not permit any Material Subsidiary to, sell, lease, transfer or otherwise dispose of (by merger or otherwise to a Person who is not a Wholly-Owned Subsidiary) all or any part of its property if such transaction involves a substantial portion of the business of the Company and its Subsidiaries, taken as a whole. As used in this paragraph, a sale, lease, transfer or other disposition of any property of the Company or a Subsidiary shall be deemed to be a substantial portion of the business of the Company and its Subsidiaries, taken as a whole, if the property proposed to be disposed of, together with all other property previously sold, leased, transferred or disposed of (other than in the ordinary course of business and other than as part of a Permitted Receivables Financing) during the current fiscal year of the Company would exceed 10% of the Consolidated Assets as of the end of the immediately preceding fiscal year (determined, if the SAC Merger occurs, on a pro forma basis assuming the SAC Merger had been consummated on December 31, 1997).
(b) The Company will not, and will not permit any Restricted Material Subsidiary to, consummate an Asset Salesell, unless:
pledge or otherwise transfer any Accounts Receivable as a method of financing (1) 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, than 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) any transaction that is part of the assets sold or otherwise disposed of; and
(2Reorganization) except in unless, after giving effect thereto 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, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent 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 liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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 sum of (i) $400.0 million and the aggregate uncollected balances of Accounts Receivable so transferred ("Transferred Receivables") plus (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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 millioncollections on Transferred Receivables theretofore received by the seller but not yet remitted to the purchaser, the Company will make an offer to all Holders and, in each case at the option date of the Companydetermination, to any holders of any Indebtedness that is pari passu with the Notes would not exceed $300,000,000 (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 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"Permitted Receivables Financing").
(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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 2 contracts
Sources: Global Revolving Credit Agreement (Sealed Air Corp/De), Global Revolving Credit Agreement (Sealed Air Corp/De)
Asset Sales. (a) The Company ▇▇▇▇▇ Energy Partners will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1) ▇▇▇▇▇ Energy Partners (or the Company or such Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such the Asset Sale) Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of (measured at such Fair Market Value to be determined on the time date of contractually agreeing to such Asset Sale) and which shall give effect to the assumption by another Person of the assets sold or otherwise disposed ofany liabilities as provided for in (2)(A) below; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration for received in the Asset Sale by ▇▇▇▇▇ Energy Partners or such Asset SaleRestricted Subsidiary, together with the consideration received in all other Asset Sales by ▇▇▇▇▇ Energy Partners or any Restricted Subsidiary since May 6, 2021 the Issue Date (on a cumulative basis), received by the Company or a Restricted Subsidiary, as the case may be, ) is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the following will shall be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(A) any liabilities (liabilities, as shown on the Company’s ▇▇▇▇▇ Energy Partners’ most recent consolidated balance sheet, of ▇▇▇▇▇ Energy Partners or any Restricted Subsidiary’s most recent 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 Guarantor’s Guarantee of the Notes, Note Guarantees) that are (i) assumed by the transferee of any such assets (pursuant to an agreement that releases ▇▇▇▇▇ Energy Partners 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 the Company or a Restricted Subsidiary)Subsidiary from further liability;
(B) any securities, notes or other obligations or assets received by the Company ▇▇▇▇▇ Energy Partners or a any such Restricted Subsidiary from such transferee or in connection with such that are within 90 days after the Asset Sale (including earnouts and similar obligations) that are subject to ordinary settlement periods), converted by the Company ▇▇▇▇▇ Energy Partners or a such Restricted Subsidiary into cash or Cash Equivalentscash, 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 Salereceived in that conversion;
(C) any stock or assets of the kind referred to in clauses (2) or (4) of the next succeeding paragraph;
(D) accounts receivable of a business retained by ▇▇▇▇▇ Energy Partners or any of its Restricted Subsidiaries, as the case may be, following the sale of such business, provided such accounts receivable (i) are not past due more than 60 days and (ii) do not have a payment date greater than 90 days from the date of the invoices creating such accounts receivable; and
(E) any Designated Non-Cash cash Consideration received by the Company ▇▇▇▇▇ Energy Partners or a such Restricted Subsidiary in such the 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 (C) that is at that time outstandingE), not to exceed the greater of (i) $400.0 million and (ii) an amount equal to 5.0% of Adjusted ▇▇▇▇▇ Energy Partners’ Consolidated Net Tangible Assets of the Company (determined 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 Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) . Within 365 days after the receipt of any Net Proceeds from an Asset Sale, ▇▇▇▇▇ Energy Partners (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1) to repay Senior Indebtedness of ▇▇▇▇▇ Energy Partners and/or its Restricted Subsidiaries (or to make an offer to repurchase or redeem such Indebtedness, provided that such repurchase or redemption closes within 45 days after the end of such 365-day period);
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of ▇▇▇▇▇ Energy Partners;
(3) to make a capital expenditure; 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. Notwithstanding the foregoing, if within 365 days after the receipt of any Net Proceeds from an Asset Sale Sale, ▇▇▇▇▇ Energy Partners (or the applicable Restricted Subsidiary, as the case may be) enters into a binding written agreement irrevocably committing ▇▇▇▇▇ Energy Partners or such Restricted Subsidiary to an application of funds of the kind described in clause (2), (3) or (4) of the preceding paragraph, and as to which the only condition to closing is the receipt of required governmental approvals or, in the case of clause (3), the completion of required construction of the applicable asset(s), ▇▇▇▇▇ Energy Partners or such Restricted Subsidiary shall be extended deemed not to be in violation of the preceding paragraph. Any Net Proceeds that are applied pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(14) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Company or preceding paragraph pursuant to any Restricted Subsidiary owning an amount of the Capital Stock of such business binding agreement shall be deemed to have been applied for such that it constitutes or continues to constitute a Restricted Subsidiary, (b) capital expenditures, (c) other expenditures made with respect to Oil and Gas Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that purpose within such 365-day period so long as they are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable Proceeds from so applied within two years after 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Net Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenantNet Proceeds, the Company and its ▇▇▇▇▇ Energy Partners or any Restricted Subsidiaries Subsidiary may temporarily reduce Indebtedness, revolving credit borrowings or otherwise use such Applicable invest the Net Proceeds in any manner that is not prohibited by the this Indenture.
(d) The amount equal to the Applicable . Any Net Proceeds from Asset Sales that are not applied or invested or applied as provided and within in the time period set forth in second paragraph of this Section 4.10(b) 4.10 will be deemed to constitute “Excess Proceeds”. .” When the aggregate amount of Excess Proceeds exceeds $50.0 million, within five days thereof (or earlier at the Company Issuers option), the Issuers will make an offer Asset Sale Offer to all Holders and, at the option of the Company, to any Notes and all holders of any other Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum aggregate principal amount of the Notes and such Pari Passu other pari passu Indebtedness that is in an amount equal to 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 Proceeds. The offer price, price in the case of the Notes, in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof (or accreted value thereof, 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 provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to the date fixed for the closing of such offerpurchase, and will be payable in accordance with the procedures set forth in Section 3.09 (or, in respect cash. If any Excess Proceeds remain after consummation of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). The Company will commence an Asset Sale Offer with respect to Offer, ▇▇▇▇▇ Energy Partners may use those 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 for any purpose not 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 and other pari passu Indebtedness surrendered in an tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, will Trustee shall select the Notes to be purchased in the manner described under Section 3.02 and the Company representative of such other pari passu Indebtedness will select such Pari Passu other 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 denominationbasis. Upon completion of any such each 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 Indentureat zero. An Asset Sale Offer or Advance Offer may be made at 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 ▇▇▇▇▇ Energy Partners will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or and regulations are applicable in connection with the each 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 the provisions of Section 3.09 hereof or this IndentureSection 4.10, the Company ▇▇▇▇▇ Energy Partners will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to under Section 3.09 hereof or this Section 4.10 may be waived or modified with the written consent by virtue of the Holders of a majority in principal amount of the then outstanding Notessuch compliance.
Appears in 1 contract
Sources: Indenture (Holly Energy Partners Lp)
Asset Sales. (a) The Company will Borrowers shall not, and will shall not permit any of their Restricted Subsidiary toSubsidiaries to (i) sell, consummate lease, convey, or otherwise dispose of any assets or rights (including by way of a sale-and-leaseback) other than sales of inventory in the Ordinary Course of Business, (ii) with respect to Amkor, sell Equity Interests in any of its Subsidiaries, or (iii) with respect to Amkor's Restricted Subsidiaries, issue Equity Interests (each of the foregoing, an "Asset Sale"), unless:
unless (1y) Amkor (or the Company or such Restricted Subsidiary, as the case may be, ) LOAN AND SECURITY AGREEMENT receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at evidenced by a resolution of Amkor's board of directors set forth in an Officer's Certificate delivered to the time of contractually agreeing to such Asset SaleAgent) of the assets sold or otherwise disposed of; and
of and (2z) except in the case of a Permitted Asset Swap, at least 7575.0% of the consideration for received therefor by Amkor or 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, Subsidiary is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent 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 liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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) $400.0 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof)Qualified Proceeds.
(b) Within 365 days after Notwithstanding the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) belowforegoing, the “following shall not be deemed to be Asset Sale Proceeds Application Period”), the Company Sales: (i) any single transaction or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or repurchase:
series of related transactions that (A) Obligations in respect involves assets having a fair market value of Senior Indebtedness; or
less than $2,000,000 or (B) Obligations results in respect net proceeds to Amkor and its Restricted Subsidiaries of Indebtedness less than $2,000,000; (ii) a transfer of assets between or among Amkor and any Restricted Subsidiary; (iii) an issuance of Equity Interests by a Restricted Subsidiary to Amkor or to another Wholly Owned Restricted Subsidiary; (iv) the sale, lease, conveyance, or other disposition of any Receivable Program Assets by any Subsidiary of Amkor that is not a GuarantorBorrower in connection with a Receivables Program; (v) the sale, lease, conveyance, or other than Obligations owed to disposition of any inventory or other current assets, excluding Accounts, by a Borrower or any of its Restricted Subsidiaries in the Company Ordinary Course of Business; (vi) the granting of a Permitted Lien or a Restricted SubsidiaryPermitted Other Lien; or
(2vii) to make (a) an Investment in any one or more 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 licensing by a Restricted Subsidiary, (b) capital expenditures, (c) other expenditures made with respect to Oil and Gas Properties, (d) acquisitions by the Company Borrower or any Restricted Subsidiary of properties intellectual property in the Ordinary Course of Business or on commercially reasonable terms; (including fee viii) the sale, lease, conveyance, or other disposition of obsolete or worn out equipment or equipment no longer useful in a Borrower's business; and leasehold interests(ix) the making or (e) acquisitions by the Company or liquidating of any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) Payment or Permitted Investment that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a is permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 foregoingby Section 10.2.2.
(c) Pending Notwithstanding any other provision of this Agreement to the final application of the amount contrary, no Borrower will enter into any Asset Sale or other sale, transfer, conveyance, or disposition of any Applicable Proceeds pursuant to this covenantother asset or property, the Company and its Restricted Subsidiaries may temporarily reduce Indebtednessin each such case if such Asset Sale, sale, transfer, conveyance, or otherwise use such Applicable Proceeds disposition is of assets or other property which constitutes Collateral; provided that the Borrowers may (i) sell Inventory in any manner not prohibited by the Indenture.
Ordinary Course of Business, (dii) The amount equal sell, transfer, or convey property and assets, including Collateral, among the Borrowers, (iii) prior to the Applicable Proceeds from Asset Sales that are not invested occurrence of an Event of Default, sell, transfer, convey, or applied as provided dispose of Collateral consisting of Equipment and within the time period set forth Inventory to any Affiliate in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the an aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to at least $2,000, or an integral multiple of $1,000 not in excess of $2,00010,000,000 during the term of this Agreement, that may be purchased out and (iv) as long as no Event of the Excess Proceeds at an offer priceDefault exists, in the case (A) make Permitted Investments and (B) grant non-exclusive licenses of the Notes, in cash in an amount equal Intellectual Property to 100% of the principal amount thereof (or accreted value thereof, 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 provided 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). The Company will commence an Asset Sale 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 Amkor and its Restricted Subsidiaries may use any remaining Excess Proceeds (or in the case of an Advance OfferSubsidiaries, 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 owner of any such Asset Sale Offer, for purposes Intellectual Property which is the subject 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 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 license retains ownership of such consents).
(e) [Reserved].
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act Intellectual Property and any other securities laws and regulations thereunder such license granted is subject to the extent such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in this Indenture by virtue thereofAgent's Liens.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary of its Subsidiaries to, consummate engage in an Asset Sale, unless:
Sale in excess of [$1,000,000] unless (1i) the Company (or such Restricted the Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) 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 value, and in the case of a Permitted Asset Swaplease of assets, at least 75% of the consideration a lease providing for such Asset Sale, together with all rent and other Asset Sales since May 6, 2021 (on a cumulative basis), received by conditions which are no less favorable to the Company (or a Restricted the Subsidiary, as the case may be) in any material respect than the then prevailing market conditions (evidenced in each case by a resolution of the Board of Directors of such entity set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests sold or otherwise disposed of, (ii) at least [75%] (100% in the case of lease payments) of the consideration therefor received by the Company or such Subsidiary is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent 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 liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee amount of any such assets (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 the Company or a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted any such Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are promptly, but in no event more than 30 days after receipt, converted by the Company or a Restricted such Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash received), shall be deemed to be cash for purposes of this provision, (iii) subject to the Intercreditor Agreement, if such Asset Sale involves the disposition of Collateral, the Company or Cash Equivalents receivedsuch Subsidiary has complied with the provisions of Articles 10 and 11 hereof, and (iv) the Company or the Subsidiary, as the case may be, applies the Net Proceeds as provided in the following paragraph. Any such Net Proceeds shall be applied within 180 days following of the closing of such Asset Sale;
(C) any Designated Non-Cash Consideration received by the Company or a 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 (C) that is at that time outstanding, not to exceed the greater of as follows:
(i) $400.0 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds are derived from property or assets which do not constitute Primary Collateral or are not deemed (pursuant to the “Applicable Proceeds”):
(1provisions described below) to repay, redeem or repurchase:
constitute Primary Collateral Proceeds (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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e"NON-PRIMARY COLLATERAL PROCEEDS"), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable Non-Primary Collateral 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders andmay, at the option of the Company, be applied to any holders of any repay Indebtedness that is pari passu with outstanding under the Notes New Credit Agreement; and
(“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 ii) with respect to any Applicable Net Proceeds derived from an Asset Sale by making an offer property or assets which constitute Primary Collateral ("PRIMARY COLLATERAL PROCEEDS") or derived from a transaction as a result of which a Subsidiary Guarantor is released from its Subsidiary Guarantee as provided in Section 12.04 and which (pursuant to purchase Notes the provisions described below) are deemed to be Primary Collateral Proceeds, and with respect to the amount of any Non-Primary Collateral Proceeds remaining after application as described in subparagraph (i) above (all or part of the available Applicable such Primary Collateral 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 amounts deemed 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 Primary Collateral Proceeds, together with 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.such
Appears in 1 contract
Sources: Indenture (RBX Corp)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such the Asset Sale) Sale at least equal to the fair market value (measured at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; andand SF\552388.8
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration for such received in the Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), received Sale by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that Equivalents or a combination of the foregoing. For purposes of this provision (and not for the purpose of the definition of Net Proceeds) each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(A) any liabilities (liabilities, as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto or, if incurred or accrued subsequent to the date of such consolidated 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 Guarantor’s Guarantee of the Notes, Note Guarantee) that are (i) assumed by the transferee of any such assets (or pursuant to 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 customary novation agreement that releases the Company or a such Restricted Subsidiary)Subsidiary from further liability;
(B) any securities, notes Notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with that are converted within 90 days of such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalentscash, 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;received in that conversion; and
(C) any Designated Non-Cash Consideration received by the Company stock 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) $400.0 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 assets of the kind referred to in clauses (2) or (4) of the next paragraph of this Section 4.10(b)(2); and
(F) with respect to any Asset Sale of Oil and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) 4.10. Within 365 360 days after the receipt of any Net Proceeds of any from an Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company (or a the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”)::
(1) to repay, redeem or repurchase:
(A) Obligations in repay Senior Debt and to correspondingly reduce commitments with 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; orthereto;
(2) to make (a) an Investment in acquire Business Assets or any one or more businesses; provided that Capital Stock of a Permitted Business, if, after giving effect to any 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 Business Assets, such Capital Stock or Business Assets become part of such business such that it constitutes or continues to constitute held or owned by a Restricted Subsidiary, (b) capital expenditures, (c) other expenditures made with respect to Oil and Gas Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clausesGuarantor;
(a3) to make a capital expenditure; or
(d4) and this clause (e), either (i) to acquire other assets that are or will be not classified as current assets under GAAP and that are used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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) Permitted Business. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantNet Proceeds, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, revolving credit borrowings or otherwise use such Applicable invest the Net Proceeds in any manner that is not prohibited by the this Indenture.
(d) The amount equal to the Applicable . Any Net Proceeds from Asset Sales that are not applied or invested or applied as provided and within in the time period set forth in second paragraph of this Section 4.10(b) 4.10 will be deemed to constitute “Excess Proceeds”. .” When the aggregate amount of Excess Proceeds exceeds $50.0 15.0 million, within 20 days thereof, the Company will make an offer Asset Sale Offer to all Holders and, at the option of the Company, to any Notes and all holders of any other Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.11 hereof to purchase the maximum aggregate principal amount of the Notes and such Pari Passu other pari passu Indebtedness that is in an amount equal to 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 Proceeds. The offer price, price in the case of the Notes, in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other priceinterest and Additional Interest, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to the date fixed for the closing of such offerpurchase, and will be payable in accordance with the procedures set forth in Section 3.09 (or, in respect cash. If any Excess Proceeds remain after consummation of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). The Company will commence an Asset Sale 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 those Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in for any manner purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the Pari Passu and other pari passu Indebtedness surrendered in an tendered into such Asset Sale Offer exceeds SF\552388.8 the amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, 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 Indentureat zero. An Asset Sale Offer or Advance Offer may be made at 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 such those laws or and regulations are applicable in connection with the each 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 the provisions of Section 3.11 hereof or this IndentureSection 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to under Section 3.11 hereof or this Section 4.10 may be waived or modified with the written consent by virtue of the Holders of a majority in principal amount of the then outstanding Notessuch compliance.
Appears in 1 contract
Asset Sales. (a) The Company Borrower will not, and will not permit any of its Restricted Subsidiary toSubsidiaries to Dispose of any asset, consummate an Asset Saleincluding any Equity Interest owned by it, unlessexcept:
(1i) Dispositions of inventory, used, worn-out, obsolete or surplus equipment, or Cash and Cash Equivalents, in each case in the ordinary course of business or (ii) the Company abandonment or such Restricted Subsidiary, as the case may be, receives consideration (including by way other Disposition of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwiseIntellectual Property that is, in connection with such Asset Salethe reasonable judgment of the Borrower, no longer economically practical or commercially reasonable to maintain or useful in any material respect in the conduct of the business of the Borrower and its Restricted Subsidiaries, taken as a whole, in the ordinary course of business;
(b) at least equal Dispositions 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 Borrower or a Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent 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 liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (sales, transfers 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 the Company or a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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) $400.0 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or repurchase:
(A) Obligations in respect of Senior Indebtedness; or
(B) Obligations in respect of Indebtedness of dispositions involving a Restricted Subsidiary that is not a GuarantorLoan Party shall be made in compliance with Section 6.09;
(c) other Dispositions of assets for fair market value, provided that the Borrower or any of its Restricted Subsidiaries shall receive not less than 75% of total consideration expected to be received for such sale, transfer or other than Obligations owed disposition in the form of Cash and Cash Equivalents (in each case, free and clear of all Liens at the time received); provided that, the value of (i) retained licenses, licenses back to the Company Borrower or its Restricted Subsidiaries (as a licensee) and covenants not-to-sue with respect to software or Intellectual Property that are incidental to such sale, transfer or other Disposition and received in the ordinary course for such transactions and (ii) the surrender, waiver, settlement, compromise or release of any claim against the Borrower or any of its Restricted Subsidiary; or
(2) to make (a) an Investment Subsidiaries in any one or more businesses; provided that such Investment connection therewith shall be excluded in any business determining whether 75% of the consideration received is in the form of Cash and Cash Equivalents; provided that Designated Non-Cash Consideration, together with Designated Non-Cash Consideration deemed cash pursuant to the acquisition of Capital Stock last proviso to Section 6.05, in an amount up to $2,500,000 for any individual Disposition and results $5,000,000 in the Company aggregate for all Dispositions during the term of this Agreement shall be deemed cash for these purposes; provided further that this clause (c) shall not permit Dispositions of the Equity Interests of any Subsidiary other than in connection with the sale of substantially all Equity Interests of such Subsidiary permitted under this Agreement;
(i) Leases, subleases, licenses or sublicenses of property (excluding Sale and Leaseback Transactions) and termination thereof by the Borrower or any Restricted Subsidiary owning an amount in the ordinary course of business or that do not materially impair the operation of the Capital Stock Borrower’s or its Restricted Subsidiaries’ business, (ii) Leases and subleases of real property located at ▇▇▇▇▇▇▇ Business Park in Rochester, NY and (iii) sales of assets pursuant to Sale and Leaseback Transactions permitted by Section 6.06;
(e) mergers, consolidations, liquidations, amalgamations and dissolutions, in each case in compliance with Section 6.03(a);
(f) Dispositions of Accounts in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy, workout or similar proceedings of applicable customers;
(g) to the extent constituting a Disposition, the granting of Liens permitted as Permitted Encumbrances and the making of investments permitted by Section 6.04 or the making of a Restricted Payment permitted by Section 6.08;
(h) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such business Disposition are promptly applied to the purchase price of such replacement property;
(i) transfers of property or assets subject to casualty or condemnation;
(j) [reserved];
(k) Dispositions of Investments in joint ventures (including non-wholly owned Unrestricted Subsidiaries) to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(l) the unwinding of any Hedging Agreement pursuant to its terms;
(m) Dispositions of Accounts that it constitutes are owned by Foreign Subsidiaries subject to customary factoring or continues to constitute a Restricted Subsidiary, receivables financing arrangements;
(bn) capital expenditures, (c) other expenditures made with respect to Oil and Gas Properties, (d) acquisitions by Dispositions of claims that the Company Borrower or any Restricted Subsidiary may maintain (i) in connection with the settlement of, or judgments in respect of properties (including fee and leasehold interests) such claims or (eii) acquisitions by to the Company relevant insurance provider in connection with the receipt of insurance proceeds related to any such claims; and
(o) Dispositions of Intellectual Property in the form of licenses of Intellectual Property to third parties, including exclusive licenses, cross licenses, and covenants not to sue or similar rights with respect to Intellectual Property granted (i) in the ordinary course of business, (ii) in connection with a settlement of litigation, or (iii) in connection with a divestiture of product, product line, business unit or division (either in its entirety or in a particular geographical region); provided that no granting of any Restricted Subsidiary exclusive licenses of other assets, Intellectual Property other than securitiestrademarks under clause (i) of this clause (o) shall be permitted to the extent such exclusive license (A) materially impairs, limits, or restricts the operation of the Borrower or its Restricted Subsidiaries’ businesses, or (B) in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas Business or (ii) that replacea license which constitutes, in whole or in part, the properties or assets that are the subject a transfer of such Asset Sale; provided that in the case of this clause (2), a binding commitment will be treated as a permitted application title of the Applicable Proceeds from licensed Intellectual Property, such license may be exclusive solely with respect to the date use of such commitment so long as the Company licensed Intellectual Property in discrete geographical areas or a Restricted Subsidiary enters into such commitment with discrete product/services categories, in each case, in which the good faith expectation that such Applicable Proceeds will be applied Borrower or any of its Subsidiaries do not have material operations relating to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds)licensed Intellectual Property; provided, further, that as it relates to the Borrower’s brand licensing business, so long as such licenses of the Borrower’s brand or trademarks relate to a field in which the Borrower is not currently engaged or contemplated to be engaged in, such licenses shall be deemed to be in the ordinary course of business for purposes of clause (o)(i) above, even if such licenses (x) are exclusive or (y) provide for a term in perpetuity or an up-front royalty (or a combination thereof); provided however, that if the Net Proceeds received from any counterparty in connection with any Disposition relating to the Borrower’s brand licensing business shall be greater than $50,000,000 in the aggregate (on a cumulative basis on or after the First Amendment Effective Date, but excluding (I) any such commitment is later cancelled or terminated for Net Proceeds received from any reason before counterparty in connection with any Disposition relating to the Borrower’s brand licensing business entered into prior to the First Amendment Effective Date and any such Applicable Proceeds are applied, then Disposition relating to a renewal of any such Applicable Proceeds will constitute Excess Proceeds existing arrangement with any such counterparty and (as defined below); or
(3II) any combination such Net Proceeds received in connection with any Disposition relating to the Borrower’s brand licensing business from counterparties with which the Borrower is negotiating brand licensing arrangements as of the foregoing.
First Amendment Effective Date with respect to which the Borrower has notified the Required Lenders on or prior to the First Amendment Effective Date), any amounts in excess of $50,000,000 shall be subject to mandatory prepayments pursuant to Section 2.06(b)(i). Notwithstanding anything to the contrary herein, (i) all Dispositions permitted hereby shall be made for fair value (other than those permitted by clauses (a)(ii), (c), (d)(i), (d)(ii), (e), (g), (i), (k), (l), (n) and (o) of this Section 6.05) and (ii) at least seventy-five percent (75%) consideration consisting of Cash and Cash Equivalents (other than those permitted by clauses (a)(ii), (b), (c) Pending (to the final application extent otherwise permitted therein), (d), (e), (f), (g), (h), (i), (j), (k), (n) and (o) of the amount of any Applicable Proceeds pursuant to this covenantSection 6.05); provided, that, the Company and value of (x) retained licenses, licenses back to the Borrower or its Restricted Subsidiaries may temporarily reduce Indebtedness, (as a licensee) and covenants not-to-sue with respect to software or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales Intellectual Property that are not invested incidental to such sale, transfer or applied as other Disposition and received in the ordinary course for such transactions and (y) the surrender, waiver, settlement, compromise or release of any claim against the Borrower or any of its Restricted Subsidiaries in connection therewith shall be excluded in determining whether 75% of the consideration received is in the form of Cash and Cash Equivalents; provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, further that at the option of the CompanyBorrower, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 Disposition, Designated Non-Cash Consideration, together with Designated Non-Cash Consideration deemed cash pursuant to Section 6.05(c), in an Asset Sale by making an offer amount up 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 $5,000,000 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not shall be deemed to have breached its obligations described in this Indenture by virtue thereofcash for these purposes.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Credit Agreement (Eastman Kodak Co)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, consummate cause, make or suffer to exist an Asset Sale, unless:
unless (1x) the Company Company, or such its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) 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, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent 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 assets or Equity Interests issued or sold or otherwise disposed of and (y) at least 75% of the proceeds from such Asset Sale when received consists of either (I) cash or Cash Equivalents or (II) property or assets that are used or useful in a Similar Business, or Capital Stock of any Person primarily engaged in a Similar Business if, as a result of the acquisition by the Company or any Restricted Subsidiary thereof, such Person becomes a Restricted Subsidiary, ; provided that the amount of (1) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notesa Subsidiary Guarantee, if any) that are (i) assumed by the transferee of any such assets (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 pursuant to an agreement that releases the Company or a such Restricted Subsidiary);
Subsidiary from further liability, (B2) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents within 180 days after such Asset Sale (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
and (C3) any Designated Non-Cash Noncash Consideration received by the Company or a any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Noncash Consideration received pursuant to this clause (C3) that is at that time outstanding, not to exceed the greater of (i) $400.0 million and (ii) 5.015% of Adjusted Consolidated Net Tangible the Company's Total Assets of the Company at the time of the receipt of such Designated Non-Cash Consideration, Noncash Consideration (with the fair market value of each item of Designated Non-Cash Noncash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and without giving effect to subsequent changes in value;
), shall be deemed to be cash for the purposes of this provision. Within 365 days after the Company's or any Restricted Subsidiary's receipt of the Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option, (Di) to permanently reduce Obligations under the New Credit Facility, other Senior Indebtedness or Guarantor Senior Indebtedness (and, in each case, to correspondingly reduce commitments with respect thereto) or to permanently reduce Pari Passu Indebtedness of the Company or any Restricted Subsidiary Guarantor (provided that ceases if the Company or such Subsidiary Guarantor shall so reduce Obligations under Pari Passu Indebtedness, it will redeem Notes with an aggregate principal amount equal to the proportion that the total aggregate principal amount of Notes outstanding bears to the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness, if the Notes are then redeemable or, if the Notes may not be then redeemed, the Company shall make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to purchase at 100% of the principal amount thereof the amount of the Notes that would otherwise be redeemed), (ii) to an investment in property, capital expenditures or assets that are used or useful in a Restricted Subsidiary Similar Business, or Capital Stock of any Person primarily engaged in a Similar Business if, 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 and Gas Properties disposed of acquisition by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or repurchase:
(A) Obligations in respect of Senior Indebtedness; or
(B) Obligations in respect of Indebtedness of Person becomes a Restricted Subsidiary that is not a Guarantor, other than Obligations owed to the Company or a Restricted Subsidiary; or
and/or (2iii) to make (a) an Investment investment in any one properties or more businesses; provided assets 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas Business or (ii) that replace, in whole or in part, replace the properties or assets that are the subject of such Asset Sale; provided that in the case of this clause (2), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenantsuch Net Proceeds, the Company and its or such Restricted Subsidiaries Subsidiary may temporarily reduce IndebtednessIndebtedness under a revolving credit facility, if any, or otherwise use invest such Applicable Net Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Cash Equivalents or Investment Grade Securities. Any Net Proceeds from the Asset Sales Sale that are not invested or applied as provided and within the time period set forth in Section 4.10(b) the first sentence of this paragraph will be deemed to constitute “"Excess Proceeds”. ." When the aggregate amount of Excess Proceeds exceeds $50.0 15 million, the Company will shall make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “"Asset Sale Offer”), ") to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, price in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, 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 provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to 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)3.10 hereof. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within 30 days ten Business Days after the date that the amount of Excess Proceeds exceeds $50.0 15 million by mailing or electronically delivering the notice required pursuant to Section 3.09the terms of this Indenture, 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)Proceeds, 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 denominationfor general corporate purposes. 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 shall 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 Indentureat zero. An Asset Sale Offer or Advance Offer may be made at 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 shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer or Advance Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Indenture (KSL Recreation Group Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such the Asset Sale) Sale at least equal to the fair market value (measured at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2ii) 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), therefor received by the Company or a the Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that Qualified Proceeds. For the purposes of clause (ii) above and no other provision, each of the following will shall be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(Aa) any liabilities (as shown on the Company’s or any the Restricted Subsidiary’s most recent balance sheet or in the notes thereto orsheet), 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 Guarantor’s Guarantee of the Notes, ) that are (i) assumed by the transferee of any such assets (pursuant to a customary assumption or a third party in connection with such transfer) novation agreement or (ii) otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to by operation of law that releases the Company or a the Restricted Subsidiary)Subsidiary from further liability therefor;
(Bb) any securities, notes or other obligations or assets received by the Company or a the Restricted Subsidiary from such a transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a the Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such the Asset Sale;; and
(Cc) any Designated Non-Cash cash Consideration received by the Company or a 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 cash Consideration received pursuant to this clause (Cc) that is at that time then outstanding, not to exceed the greater of (ix) $400.0 80.0 million and (iiy) 5.010% of Adjusted Consolidated Net Total Tangible Assets of the Company at the time of the receipt of such Designated Non-Cash Consideration, cash Consideration with the fair market value Fair Market Value of each item of Designated Non-Cash cash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) . Within 365 360 days after the receipt of any Net Proceeds of any from an Asset Sale (as may be extended pursuant to clause (2) belowSale, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 may apply the Net Proceeds, at its option,
(a) to repay or otherwise retire amounts owing under the Credit Agreement in accordance with the Credit Agreement and to correspondingly reduce commitments with respect thereto,
(b) to repay or otherwise retire amounts owing under other Secured Indebtedness (other than subordinated obligations), which Secured Indebtedness is permitted by the Indenture, and to correspondingly reduce commitments with respect thereto, or
(c) to the acquisition of a majority of the Capital assets of, or a majority of the Voting Stock of, another Permitted Business, to making a capital expenditure for the construction, repair, improvement or acquisition of such business such assets that it constitutes are used or continues useful in a Permitted Business (or commitment to constitute do any of the foregoing, provided that this commitment or its reasonable replacement is consummated substantially in accordance with its terms), or
(d) for a Restricted Subsidiarycombination of uses described in clauses (a), (b) capital expenditures, or (c) other expenditures made with respect to Oil and Gas Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenantNet Proceeds, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, revolving credit borrowings or otherwise use such Applicable invest the Net Proceeds in any manner that is not prohibited by the this Indenture.
(d) The amount equal to the Applicable . Any Net Proceeds from Asset Sales that are not applied or invested or applied as provided and within in the time period set forth in Section 4.10(b) immediately preceding paragraph will be deemed to constitute “Excess Proceeds”. .” When the aggregate amount of Excess Proceeds exceeds $50.0 20.0 million, the Company will be required to make an offer to all Holders of Notes (an “Asset Sale Offer”) to purchase the maximum principal amount of Notes and, at if the option of Company is required to do so under the Company, to any holders terms of any other Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and Notes, such offer, an “Asset Sale Offer”), to purchase other Indebtedness on a pro rata basis with the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to at least $2,000, or an integral multiple of $1,000 in excess of $2,000Notes, that may be purchased out of the Excess Proceeds Proceeds, at an offer price, in the case of the Notes, price in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, if less), of the Notes plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other priceinterest and Additional Interest thereon, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to the date fixed for of repurchase (the closing of such offer“Asset Sale Payment Date”), 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). The Company will commence an Asset Sale 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”)Indenture. To the extent that the aggregate principal amount (or accreted value, as applicable) any Excess Proceeds remain after consummation of Notes and such Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than Offer, the Company may use the Excess Proceeds (or in the case of an Advance Offer, the Advance Portion), the Company and its Restricted Subsidiaries may use for any remaining Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in any manner not prohibited by this Indenturegeneral corporate purpose. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or and the Pari Passu Company will select such pari passu Indebtedness surrendered in an tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the subject to Applicable Procedures, the Trustee will select the Notes to be purchased in the manner described under Section 3.02 and the Company will select such Pari Passu other 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 pari passu Indebtedness tendered tendered, subject to applicable DTC procedures with adjustments as necessary so that no Notes or Pari Passu Indebtedness will be repurchased in part in an unauthorized denominationrespect to Global Notes. Upon completion of any such each 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 shall 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 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)zero.
(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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, consummate cause, make or suffer to exist an Asset Sale, unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at as determined in good faith by the time of contractually agreeing to such Asset SaleCompany) 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), therefor received by the Company or a such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):amount of:
(A) any liabilities (as shown on the Company’s or any such Restricted Subsidiary’s most recent 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 Companythereto) of the Company or any such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (or a third party in connection with such transferon behalf of the transferee) or (ii) otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to and for which the Company or a such Restricted Subsidiary)Subsidiary has been validly released by all applicable creditors in writing;
(B) any securities, notes or other obligations or assets received by the Company or a such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 90 days following the closing of such Asset Sale;; and
(C) any Designated Non-Cash Noncash Consideration received by the Company or a such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Noncash Consideration received pursuant to this clause subclause (C) that is at that time outstandinghas not previously been converted to cash, not to exceed the greater of (ix) $400.0 90.0 million and (iiy) 5.03.5% of Adjusted Consolidated Net Tangible Total Assets of the Company at the time of the receipt of such Designated Non-Cash Noncash Consideration, with the fair market value of each item of Designated Non-Cash Noncash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and without giving effect to subsequent changes in value;
(D) Indebtedness of any Restricted Subsidiary that ceases ; shall be deemed to be a Restricted Subsidiary as a result cash for purposes of such Asset Sale (this provision and for no 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof)purpose.
(b) Within 365 days after any of the Company’s or any Restricted Subsidiary’s receipt of any the Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or a such Restricted SubsidiarySubsidiary may, at its option, may apply an amount equal to such the Net Proceeds (the “Applicable Proceeds”):from such Asset Sale:
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.permanently reduce
Appears in 1 contract
Sources: Indenture (Kaiser Aluminum Corp)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such the Asset Sale) Sale at least equal to the fair market value (measured at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration for such received in the Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), received Sale by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(A) any liabilities (liabilities, as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto or, if incurred or accrued subsequent to the date of such consolidated 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 Guarantor’s Guarantee of the Notes, Note Guarantee) that are (i) assumed by the transferee of any such assets (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 and for which the Company or a such Restricted Subsidiary)Subsidiary has been released in writing;
(B) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash EquivalentsEquivalents within 180 days of the receipt thereof, 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 Salereceived in that conversion;
(C) any Designated Non-Cash cash Consideration received by the Company or a such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of (i) $400.0 150.0 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 cash Consideration, with the fair market value Fair Market Value of each item of Designated Non-Cash cash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and without giving effect to subsequent changes in value;; and
(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 stock 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 assets of the kind referred to in clauses (2) or (4) of the second succeeding paragraph of this Section 4.10(b)(2); and
(F) with respect to any Asset Sale of Oil and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) 4.10. Within 365 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 prepay, repay or purchase (x) Indebtedness and other Obligations under the Credit Agreement or (y) any other Indebtedness that is secured; provided that in connection with any prepayment, repayment or purchase of any Asset Sale (as may be extended Indebtedness pursuant to this clause (2) below, the “Asset Sale Proceeds Application Period”1), the Company or a such Restricted Subsidiary, at its option, may apply Subsidiary shall retire such Indebtedness and shall cause the related commitment (if any) to be permanently reduced in an amount equal to such Net Proceeds (the “Applicable Proceeds”):principal amount so prepaid, repaid or purchased;
(12) to repayacquire all or substantially all of the assets of, redeem or repurchase:a majority of the Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(A3) Obligations to make a capital expenditure or purchase construction or industrial equipment;
(4) to acquire or license other assets (other than Capital Stock) and that are used or useful in respect of Senior Indebtednessa Permitted Business;
(5) to acquire Replacement Assets; or
(B6) Obligations in respect of to repay Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Obligations Indebtedness owed to the Company or a another Restricted Subsidiary; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenantNet Proceeds, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, revolving credit borrowings or otherwise use such Applicable invest the Net Proceeds in any manner that is not prohibited by the this Indenture.
(d) The amount equal to the Applicable . Any Net Proceeds from Asset Sales that are not applied or invested or applied as provided and within the time period set forth in Section 4.10(b) described above will be deemed to constitute “Excess Proceeds”. .” When the aggregate amount of Excess Proceeds exceeds $50.0 25.0 million, within 30 days thereof, unless waived or modified with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding, the Company will make an offer Asset Sale Offer to all Holders and, at the option of the Company, to any Notes and all holders of any other Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase the maximum aggregate principal amount of the Notes and such Pari Passu other pari passu Indebtedness that is in an amount equal to 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 Proceeds. The offer price, price in the case of the Notes, in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof (or accreted value thereof, 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 provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to the date fixed for the closing of such offerpurchase, and will be payable in accordance with the procedures set forth in Section 3.09 (or, in respect cash. If any Excess Proceeds remain after consummation of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). The Company will commence an Asset Sale 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 those Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in for any manner purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the Pari Passu and other pari passu Indebtedness surrendered in an tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, Company will select the Notes to be purchased in the manner described under Section 3.02 and the Company will select such Pari Passu other 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 denominationbasis. Upon completion of any such each 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 Indentureat zero. An Asset Sale Offer or Advance Offer may be made at 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 such laws or and regulations are applicable in connection with the each 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 the provisions of Section 3.09 hereof or this IndentureSection 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to under Section 3.09 hereof or this Section 4.10 may be waived or modified with the written consent by virtue of the Holders of a majority in principal amount of the then outstanding Notessuch compliance.
Appears in 1 contract
Sources: Indenture (Itron Inc /Wa/)
Asset Sales. (a) The Company will not, and will not permit any its Restricted Subsidiary to, consummate Subsidiaries may complete an Asset Sale, unless:
(1) 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 Sale if 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, as determined in good faith by the Company, of the assets sold or otherwise disposed of, and at least 75% of the consideration received by the Company or the Restricted Subsidiary is in the form of cash or Cash Equivalents; provided cash equivalents. The fair market value of any assets or securities that each are required to be valued by this provision in excess of $15.0 million will be determined by the Company’s Board of Directors. For purposes of determining the amount of cash received in an Asset Sale, the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(Ai) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent 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 liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (or a third party in connection with such transfer) or the assets; and
(ii) otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or a Restricted Subsidiary);
(B) amount of any securities, notes or other obligations or assets received by the Company or a the Restricted Subsidiary from such the transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are is converted by the Company or a the Restricted Subsidiary into cash or Cash Equivalentswithin 60 days, 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 . Furthermore, the closing of such Asset Sale;
(C) 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, 75% limitation will not to exceed the greater of (i) $400.0 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 apply to any Asset Sale of Oil and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company cash portion of the consideration received is equal to or any Restricted Subsidiary retains an interest, greater than what the costs and expenses related to after-tax proceeds would have been had the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by Asset Sale complied with the transferee (or an Affiliate thereof)75% limitation.
(b) Within 365 days after If the receipt Company or any of any its Company’s Restricted Subsidiaries receives Net Proceeds of any from one or more Asset Sale (as may be extended pursuant to clause (2) belowSales, the “Asset Sale Proceeds Application Period”)then within 360 days, the Company or a any of its Restricted Subsidiary, at its option, Subsidiaries may apply an amount equal to such Net Proceeds proceeds to:
(the “Applicable Proceeds”):
i) permanently prepay or permanently repay or redeem, repurchase or retire any (1) to repayof the Company’s or a Guarantor’s secured Indebtedness, redeem or repurchase:
(A2) Obligations in respect of Senior Indebtedness; or
(B) Obligations in respect of Indebtedness of a Restricted Subsidiary that is not a GuarantorGuarantor (in each case, other than Obligations owed to with a permanent reduction of availability in the Company or a Restricted Subsidiarycase of revolving Indebtedness); orand/or
(2ii) make an investment in capital assets used or useful in or other capital expenditures relating to make (a) an Investment a Permitted Business. Any Net Proceeds that are not applied or invested in either of these ways will be considered “Excess Proceeds.” Pending the final application of any one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in Net Proceeds, the Company or any Restricted Subsidiary owning an amount of may temporarily reduce borrowings under the Capital Stock of such business such Company’s bank credit facilities, or otherwise invest the Net Proceeds in any manner that it constitutes or continues to constitute a Restricted Subsidiary, (b) capital expenditures, (c) other expenditures made with respect to Oil and Gas Properties, (d) acquisitions is not prohibited by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 foregoingIndenture.
(c) Pending If on the final application of 361st day after an Asset Sale (or at the amount of Company’s option, any Applicable Proceeds pursuant to this covenantearlier date), the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 25.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), ) to purchase the maximum aggregate principal for cash that amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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 a purchase price equal to 100% of the principal amount thereof (or accreted value thereof, if less), of the Note plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other price, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to, but excluding, interest to the date fixed for the closing of such offer, in accordance with purchase. The Company will follow the procedures set forth in Section 3.09 (or, in respect of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). The Company will commence an Asset Sale 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 3.08 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 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 applicable securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer or Advance Offer. laws.
(d) To the extent that the provisions aggregate amount of any securities laws or regulations conflict with Notes tendered in response to the provisions of this IndentureCompany’s Asset Sale Offer is less than the Excess Proceeds, the Company will comply with or any Restricted Subsidiary may use such deficiency for general business purposes. If the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of Notes surrendered by the Holders exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Notwithstanding the foregoing, if the Company makes this Asset Sale Offer at any time when the Company has securities or other Indebtedness (other than intercompany Indebtedness) outstanding ranking equally in right of payment with the Notes and the terms of those securities or other Indebtedness provide that a similar offer must be made with respect to those other securities or other Indebtedness, then outstanding Notesthe Company’s Asset Sale Offer will be made concurrently with the other offers, and such securities or other Indebtedness of each issue will be accepted on a pro rata basis in proportion to the aggregate principal amount of such securities or other Indebtedness of each issue which their holders elect to have purchased. Upon completion of the Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of the Restricted Subsidiary Subsidiaries to, consummate cause or make an Asset Sale, unless:
unless (1x) the Company or such any Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value Fair Market Value (measured at as determined in good faith by the time of contractually agreeing to such Asset SaleCompany) of the assets sold or otherwise disposed of; and
, and (2y) 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), therefor received by the Company or a such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):amount of:
(Ai) any liabilities (as shown on the Company’s or any a Restricted Subsidiary’s most recent 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 Companythereto) of the Company or any a Restricted Subsidiary, Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, Guarantee) that are (i) assumed by the transferee of any such assets (or a third party in connection with such transfer) or (ii) that are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or a Restricted Subsidiary);transferee,
(Bii) any securities, notes or other obligations or other securities or assets received by the Company or a such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;),
(C) 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) $400.0 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;
(Diii) Indebtedness of any Restricted Subsidiary that ceases to be is no longer a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or a Restricted Subsidiary)Sale, to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such the Asset Sale;,
(Eiv) any Investment, Capital Stock, assets, property or capital or other expenditure consideration consisting of Indebtedness of the kind referred to in Section 4.10(b)(2); Company (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company or any Restricted Subsidiary, and
(Fv) with respect to any Asset Sale of Oil and Gas Properties disposed of Designated Non-cash Consideration received by the Company or any Restricted Subsidiary in which such Asset Sale having an aggregate Fair Market Value (as determined in good faith by the Company or any Restricted Subsidiary retains an interestCompany), taken together with all other Designated Non-cash Consideration received pursuant to this Section 4.06(a)(v) that is at that time outstanding, not to exceed the costs greater of $50 million and expenses related to 20% of Consolidated EBITDA at the exploration, development, completion or production time of the receipt of such Oil Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and Gas Properties and activities related thereto agreed without giving effect to subsequent changes in value), shall be deemed to be assumed by Cash Equivalents for the transferee (or an Affiliate thereofpurposes of this Section 4.06(a).
(b) Within 365 days after the Company’s or any Restricted Subsidiary’s receipt of any the Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or a such Restricted SubsidiarySubsidiary may apply the Net Proceeds from such Asset Sale, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or repurchase:
(i) to repay (A) Obligations in Secured Indebtedness (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect of Senior Indebtedness; or
thereto), (B) Obligations in respect of Indebtedness of a Restricted Subsidiary that is not a Guarantor, (C) Obligations under the Notes or (D) other Pari Passu Indebtedness (provided that if the Company or any Guarantor shall so reduce the Obligations under unsecured Pari Passu Indebtedness under this clause (D), the Company will equally and ratably reduce Notes Obligations pursuant to Section 3.01, 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 below for an Asset Sale Offer) to all holders to purchase at a purchase price equal to 100% of the principal amount thereof (or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest on the pro rata principal amount of Notes), in each case other than Obligations Indebtedness owed to the Company or a Restricted Subsidiaryan Affiliate of the Company; or
(2ii) to make (aA) an Investment investment in any one or more businesses; businesses (provided that if such Investment in any business investment is in the form of the acquisition of Capital Stock and of a Person, such acquisition results in the Company or any such Person becoming a Restricted Subsidiary owning an amount of the Capital Stock of such business such that it constitutes Company), assets, or continues to constitute a Restricted Subsidiaryproperty, or (bB) capital expenditures, in each case (cx) other expenditures made with respect to Oil and Gas Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas a Similar Business or (iiy) that replace, in whole or in part, replace the properties or and assets that are the subject of such Asset SaleSale or to reimburse the cost of any of the foregoing incurred on or after the date on which the Asset Sale giving rise to such Net Proceeds was contractually committed; provided that in or
(iii) any combination of the foregoing. In the case of this clause (2Section 4.06(b)(ii), a binding commitment will shall be treated as a permitted application of the Applicable Net Proceeds from the date of such commitment so long as until the Company or a Restricted Subsidiary enters into such commitment with 18-month anniversary of the good faith expectation that such Applicable Proceeds will be applied to satisfy such commitment within 180 days date of such commitment (or, if later, 365 days after the receipt of such Applicable Net Proceeds); provided, further, provided that if any in the event such binding commitment is later cancelled canceled or terminated for any reason before such Applicable Net Proceeds are so applied, then such Applicable Net Proceeds will shall constitute Excess Proceeds (as defined below); or
(3) any combination of the foregoing.
(c) Proceeds. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantsuch Net Proceeds, the Company and its or such Restricted Subsidiaries Subsidiary may temporarily reduce IndebtednessIndebtedness under a revolving credit facility, if any, or otherwise use invest such Applicable Net Proceeds in any manner not prohibited by the this Indenture.
(d) The amount equal to the Applicable . Any Net Proceeds from any Asset Sales Sale that are not invested or applied as provided and within the time period set forth in the first sentence of this Section 4.10(b4.06(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes, as described in clause (i) of this Section 4.06(b), shall be deemed to have been invested whether or not such offer is accepted) will be deemed to constitute “Excess Proceeds”. .” When the aggregate amount of Excess Proceeds exceeds $50.0 25 million, the Company will shall make an offer to all Holders holders of Notes (and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“other Pari Passu Indebtedness” and such offer, ) (an “Asset Sale Offer”), ) to purchase the maximum aggregate principal amount of the Notes (and such other Pari Passu Indebtedness Indebtedness), that is in an amount equal to at least $2,000, or 2,000 and an integral multiple of $1,000 in excess of $2,000, thereof that may be purchased out of the Excess Proceeds at an offer price, in the case of the Notes, price in cash in an amount equal to 100% of the principal amount thereof (or, in the event the Notes or other Pari Passu Indebtedness were issued with significant original issue discount, 100% of the accreted value thereof, if less), plus accrued and unpaid interest, if any interest (or, in respect of such other Pari Passu Indebtedness, such other lesser price, if any, as may be provided for by the terms of such other 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)this Indenture. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within 30 days ten (10) Business Days after the date that the amount of Excess Proceeds exceeds $50.0 25 million by mailing mailing, or delivering electronically delivering if held by the Depository, a notice required pursuant containing provisions similar to those set forth in this Indenture in Section 3.093.05(a), as applicable, 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 other Pari Passu Indebtedness 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)Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in for any manner purpose that is not prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the (and such other Pari Passu Indebtedness Indebtedness) surrendered in an Asset Sale Offer by holders thereof exceeds the amount of Excess Proceeds (or in the case of an Advance Offer, the Advance Portion)Proceeds, the Trustee, in accordance with upon receipt of notice from the Applicable ProceduresCompany of the aggregate principal amount to be selected, will shall select the Notes to be purchased in the manner described under in 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 denomination4.06(e). 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 shall 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 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)zero.
(e) [Reserved].
(fc) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(gd) The Company’s obligation Not later than the date upon which written notice of an Asset Sale Offer is delivered to make the Trustee as provided above, the Company shall deliver to the Trustee an offer Officers’ Certificate as to repurchase (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.06(b). Prior to 11:00 a.m., New York City time, on the purchase date, the Company shall also deposit with the Trustee or the Paying Agent (or, if the Company or a Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be held for payment in accordance with the provisions of this Section 4.06. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes pursuant or portions thereof that have been properly tendered to this Section 4.10 may and are to be waived accepted by the Company. The Trustee (or modified with the written consent Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee are greater than the purchase price of the Notes tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period.
(e) Holders electing to have a Note purchased shall be required to surrender such Note, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of a majority in the holder, the principal amount of the then outstanding NotesNote which was delivered by the holder for purchase and a statement that such holder is withdrawing his election to have such Note purchased. If at the end of the Offer Period more Notes (and such other Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, selection of such Notes for purchase shall be made by the Trustee on a pro rata basis to the extent practicable, by lot or by such other method as the Trustee shall deem fair and appropriate (and in such manner as complies with the requirements of the Depository, if applicable); provided that no Notes of $2,000 or less shall be purchased in part. Selection of such other Pari Passu Indebtedness shall be made pursuant to the terms of such other Pari Passu Indebtedness.
(f) Notices of an Asset Sale Offer shall be mailed by the Company by first class mail, postage prepaid, or delivered electronically if held by the Depository, at least 15 but not more than 60 days before the purchase date to each holder of Notes at such holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 1 contract
Sources: Indenture (Wabash National Corp /De)
Asset Sales. (a) The Company will may not, and will may not permit any Restricted Subsidiary to, directly or indirectly, consummate an Asset Sale, unless:
Sale (1including the sale of any of the Capital Stock of any Restricted Subsidiary) providing for Net Proceeds in excess of $5,000,000 unless at least 75% of the Net Proceeds from such Asset Sale are applied (in any manner otherwise permitted by this Indenture) to one or more of the following purposes in such combination as the Company shall elect: (a) an investment in another asset or such Restricted Subsidiary, as business in the case may be, receives consideration (including by way same line of relief frombusiness as, or by any other Person assuming responsibility fora line of business similar to that of, any liabilities, contingent or otherwise, in connection with such Asset Sale) at least equal to the fair market value (measured line of business of the Company and its Restricted Subsidiaries at the time of contractually agreeing the Asset Sale; provided that such investment occurs on or prior to the 365th day following the date of such Asset SaleSale (the "Asset Sale Disposition Date"); (b) to reimburse the Company or its Subsidiaries for expenditures made, and costs incurred, to repair, rebuild, replace or restore property subject to loss, damage or taking to the extent that the Net Proceeds consist of insurance proceeds received on account of such loss, damage or taking; (c) the purchase, redemption or other prepayment or repayment of outstanding Senior Indebtedness of the assets sold Company or otherwise disposed ofIndebtedness of the Company's Restricted Subsidiaries on or prior to the 365th day following the Asset Sale Disposition Date; and
or (2d) except in an Offer expiring on or prior to the case of a Permitted Purchase Date (as defined herein). In addition, the Company may not, and may not permit any Restricted Subsidiary to, directly or indirectly, consummate an Asset Swap, Sale unless at least 75% of the consideration for such Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), thereof received by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash, cash equivalents or Cash Equivalentsmarketable securities; provided that each of the following will be deemed to be cash or Cash Equivalents that, solely for purposes of this Section 4.10(a)(2):
calculating such 75% of the consideration, the amount of (Ax) any liabilities (as shown on the Company’s 's or any such Restricted Subsidiary’s 's most recent balance sheet or in the notes thereto orthereto, if incurred or accrued subsequent to the date of such balance sheet, such excluding contingent 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 Companyand trade payables) of the Company or any Restricted Subsidiary, Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, ) that are (i) assumed by the transferee of any such assets and (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 the Company or a Restricted Subsidiary);
(By) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are promptly, but in no event more than 30 days after receipt, converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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) $400.0 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 shall be deemed to be a Restricted Subsidiary as a result cash and cash equivalents for purposes 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 this provision. Any Net Proceeds 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not applied or invested or applied as provided and within in the time period set forth in Section 4.10(b) will be deemed to first sentence of this paragraph shall constitute “"Excess Proceeds”. ." When the aggregate amount of Excess Proceeds exceeds $50.0 million10,000,000 (such date being an "Asset Sale Trigger Date"), the Company will shall make an offer Offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to at least $2,000, or an integral multiple of $1,000 in excess of $2,000, then outstanding that may be purchased out of the Excess Proceeds Proceeds, at an offer price, in the case of the Notes, price in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, if less), plus any accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other priceinterest and Liquidated Damages, if any, as may be provided for by to the terms of such Pari Passu Indebtedness), to, but excluding, the date fixed for the closing of such offerPurchase Date, in accordance with the procedures set forth in Section 3.09 (orthis Indenture. Notwithstanding the foregoing, in respect to the extent that any or all of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). The Company will commence Net Proceeds of an Asset Sale Offer with respect to Excess Proceeds within 30 days after the date that the amount of Excess Proceeds exceeds $50.0 million is prohibited or delayed by mailing or electronically delivering the notice required pursuant to Section 3.09, with a copy applicable local law from being repatriated to the TrusteeUnited States, the portion of such Net Proceeds so affected will not be required to be applied as described in this or otherwise in accordance with Applicable Procedures. The Company the preceding paragraph, but may satisfy be retained for so long, but only for so long, as the foregoing obligation with respect to any Applicable Proceeds from an Asset Sale by making an offer to purchase Notes with respect applicable local law prohibits repatriation 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”)United States. 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 any Excess Proceeds (or in the case remain after completion of an Advance Offer, the Advance Portion), the Company and its Restricted Subsidiaries may use any such remaining Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in any manner not prohibited by this Indentureamount for general corporate purposes. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the Pari Passu Indebtedness surrendered in an Asset Sale Offer by holders thereof exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, will Trustee shall 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 denominationbasis. Upon completion of any such an 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 shall 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 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)zero.
(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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Indenture (Jackson Products Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, consummate sell, issue, convey, transfer, lease or otherwise dispose of, to any Person other than the Company or any of its Restricted Subsidiaries (including, without limitation, by means of a sale-and-leaseback transaction or a merger or consolidation) (collectively, for purposes of this Section 4.10, a "transfer"), directly or indirectly, in one or a series of related transactions, (a) any Capital Stock of any Restricted Subsidiary held by the Company or any other Restricted Subsidiary, (b) all or substantially all of the properties and assets of any division or line of business of the Company or any of its Restricted Subsidiaries, (c) any Event of Loss or (d) any other properties or assets of the Company or any of its Restricted Subsidiaries other than transfers of cash, Cash Equivalents, accounts receivable, or properties or assets in the ordinary course of business; provided that the sale, lease, 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, shall be governed by Sections 4.15 and/or 5.1 hereof and not by the provisions of this Section 4.10 (each of the foregoing, an "Asset Sale"), unless:
unless (1i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at evidenced by a resolution of the time Board of contractually agreeing Directors set forth in an Officers' Certificate delivered to such Asset Salethe Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) 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), therefor received by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that each the amount of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(Ax) any liabilities (as shown on the Company’s 's or any such Restricted Subsidiary’s 's most recent 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 Subordinated Indebtedness or otherwise by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, Subsidiary Guarantees) that are (i) assumed by the transferee of any such assets (or pursuant to 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 novation agreement that releases the Company or a such Restricted Subsidiary);
Subsidiary from further liability and (By) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents within 180 days of closing such Asset Sale (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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) $400.0 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 shall be deemed 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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 cash for purposes of this clause (2), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 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 consentsii).
(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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Indenture (Taylor Companies Inc)
Asset Sales. (a) The Company Borrower will not, and will not permit any Restricted Subsidiary of the Subsidiaries to, consummate an Asset Salesell, unlesstransfer, lease or otherwise dispose of (in one transaction or a series of transactions) all or any substantial part of the assets of the Borrower and the Subsidiaries, taken as a whole, or any Equity Interest owned by it, nor will the Borrower permit any of the Subsidiaries to issue any additional Equity Interest in such Subsidiary (other than to the Borrower or a Subsidiary), except:
(1a) sales of inventory, used or surplus equipment and Permitted Investments in the ordinary course of business, including sales to Franchisees;
(b) sales, transfers and dispositions to the Borrower or a 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) Permitted Store Sales and Permitted Store Swaps; provided that the sum of (i) the Company or such Restricted Subsidiary, as aggregate non-cash consideration received for all Permitted Store Sales (other than non-cash consideration permitted by clause (ii) of the case may be, receives proviso at the end of this Section in transactions involving 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 75% of which is cash and cash equivalents) plus (ii) the aggregate fair market value of all Stores and related assets transferred by the Borrower and its Subsidiaries in Permitted Store Swaps (measured less any consideration in the form of cash and cash equivalents received in exchange therefor) does not exceed $25,000,000; and
(d) sales, transfers and other dispositions of assets (including sales of Equity Interests) that are consummated after July 2, 2007; provided that (i) the cumulative aggregate fair market value of all assets (including Equity Interests) sold, transferred or otherwise disposed of in reliance on this clause (d) (determined at the time of contractually agreeing any such sale, transfer or other disposition and without regard to subsequent changes in such Asset Salevalue) shall not exceed $45,000,000 and (ii) all proceeds of any such sale, transfer or other disposition consummated by the assets sold Borrower or otherwise disposed ofany Domestic Subsidiary after the Restatement Effective Date that are in the form of cash and cash equivalents shall, substantially concurrently with the receipt thereof by the Borrower or such Domestic Subsidiary, be deposited in one or more deposit accounts or securities accounts that are subject to Account Control Agreements; and
(e) sales, transfers and other dispositions of assets (including sales of Equity Interests) that are consummated after July 2, 2007; provided that (i) the cumulative aggregate fair market value of all assets (including Equity Interests) sold, transferred or otherwise disposed of in reliance on this clause (e) (determined at the time of any such sale, transfer or other disposition and without regard to subsequent changes in such value) shall not exceed $75,000,000 and (ii) all proceeds of any such sale, transfer or other disposition consummated by the Borrower or any Domestic Subsidiary after the Restatement Effective Date that are in the form of cash and cash equivalents shall, substantially concurrently with the receipt thereof by the Borrower or such Domestic Subsidiary, be deposited in one or more deposit accounts or securities accounts that are subject to Account Control Agreements; provided that all sales, transfers, leases and other dispositions permitted hereby (including sales of Equity Interests) (i) shall (except in the case of a Permitted Asset Swap, those permitted by clause (b) above) be made for fair value and (ii) shall be made solely for consideration of which 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, thereof is in the form of cash or Cash Equivalents; cash equivalents (provided that each sales of the following will Permitted Investments shall be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent 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 liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied made solely for cash or Cash Equivalents (cash equivalents and Permitted Store Sales and Permitted Store Swaps may be effected for non-cash consideration to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) any Designated Non-Cash Consideration received permitted 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) $400.0 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 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 consentsabove).
(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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Credit Agreement (Blockbuster Inc)
Asset Sales. (a) The Company will Borrowers shall not, and will shall not permit any of their Restricted Subsidiary toSubsidiaries to (i) sell, consummate lease, convey, or otherwise dispose of any assets or rights (including by way of a sale-and-leaseback) other than sales of inventory in the Ordinary Course of Business, (ii) with respect to Amkor, sell Equity Interests in any of its Subsidiaries, or (iii) with respect to Amkor’s Restricted Subsidiaries, issue Equity Interests (each of the foregoing, an “Asset Sale”), unless:
unless (1y) Amkor (or the Company or such Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at evidenced by a resolution of Amkor’s board of directors set forth in an Officer’s Certificate delivered to the time of contractually agreeing to such Asset SaleAgent) of the assets sold or otherwise disposed of; and
of and (2z) except in the case of a Permitted Asset Swap, at least 7575.0% of the consideration for received therefor by Amkor or 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, Subsidiary is in the form of cash or Cash Equivalents; provided that each of other Qualified Proceeds.
(b) Notwithstanding the foregoing, the following will shall not be deemed to be Asset Sales: (i) any single transaction or series of related transactions that (A) involves assets having a fair market value of less than $5,000,000 or (B) results in net proceeds to Amkor and its Restricted Subsidiaries of less than $5,000,000; (ii) a transfer of assets between or among Amkor and any Restricted Subsidiary; (iii) an issuance of Equity Interests by a Restricted Subsidiary to Amkor or to another Wholly Owned Restricted Subsidiary or pro rata; (iv) the sale, lease, conveyance, or other disposition of any Receivable Program Assets by any Subsidiary of Amkor that is not a Borrower in connection with a Receivables Program; (v) the sale, lease, conveyance, or other disposition of any inventory or other current assets, excluding Accounts, by a Borrower or any of its Restricted Subsidiaries in the Ordinary Course of Business; (vi) the granting of a Permitted Lien or a Permitted Other Lien; (vii) the licensing by a Borrower or any Restricted Subsidiary of intellectual property in the Ordinary Course of Business or on commercially reasonable terms; (viii) (A) the sale, lease, conveyance, or other disposition of obsolete, surplus, discontinued, damaged, excess or worn out equipment or other property no longer useful in a Borrower’s business or (B) the lapse of registered patents, trademarks and other intellectual property or the termination of license agreements related thereto to the extent not economically desirable in the conduct of the business; (ix) the making or liquidating of any Restricted Payment or Permitted Investment that is permitted by Section 10.2.2; (x) the disposition of cash or Cash Equivalents for purposes in the ordinary course of this Section 4.10(a)(2):
business; (Axi) any liabilities condemnation or other eminent domain event or casualty event; (as shown on xii) the Company’s surrender or waiver of litigation rights or settlement, release or surrender of tort or other litigation claims of any Restricted Subsidiary’s most recent balance sheet or in kind if it is for the notes thereto or, if incurred or accrued subsequent to the date benefit 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, Amkor (as determined in good faith by the Companyboard of directors); (xiii) a concurrent purchase and sale or exchange of the Company assets used in a Permitted Business between Amkor or any of its Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts Subsidiaries and similar obligations) that are converted by the Company or a Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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) $400.0 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more businessesanother Person; provided that such Investment assets received are of a comparable fair market value (as determined by the board of directors) to the assets exchanged and any cash received must be applied in any business is in accordance with this Section 10.2.5; (xiv) the form issuance or sale of directors’ qualifying shares or shares or interests required to be held by foreign nationals pursuant to local law or the like; and (xv) the sale or other disposition 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 Properties, (d) acquisitions patents approved by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 foregoingAgent.
(c) Pending Notwithstanding any other provision of this Agreement to the final application of the amount contrary, no Borrower will enter into any Asset Sale or other sale, transfer, conveyance, or disposition of any Applicable Proceeds pursuant to this covenantasset or other property, the Company and its Restricted Subsidiaries may temporarily reduce Indebtednessin each such case if such Asset Sale, sale, transfer, conveyance, or otherwise use such Applicable Proceeds disposition is of assets or other property which constitutes Collateral; provided that the Borrowers may (i) sell Inventory in any manner not prohibited by the Indenture.
Ordinary Course of Business, (dii) The amount equal to sell, transfer, convey or dispose of property and assets, including Collateral, among the Applicable Proceeds from Asset Sales that are not invested Borrowers, (iii) if no Event of Default exists, sell, transfer, convey, or applied as provided dispose of Collateral consisting of Equipment and within the time period set forth Inventory in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the an aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to at least $2,000, or an integral multiple of $1,000 not in excess of $2,00025,000,000 during the term of this Agreement, that may be purchased out (iv) as long as no Event of the Excess Proceeds at an offer priceDefault exists, (A) make Permitted Investments, (B) grant licenses of Intellectual Property in the case Ordinary Course of the NotesBusiness or on commercially reasonable terms, in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, 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 provided 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). The Company will commence an Asset Sale 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 owner of any such Asset Sale Offer, for purposes Intellectual Property which is the subject 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 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 license retains ownership of such consents).
(e) [Reserved].
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act Intellectual Property and any such license granted is subject to the Agent’s Liens, (C) (x) sell, transfer, convey or dispose of obsolete, surplus, discontinued, damaged, excess or worn out Equipment or other securities laws property that is no longer useful in a Borrower’s business or (y) allow the lapse of registered patents, trademarks and regulations thereunder other intellectual property approved by the Agent or the termination of license agreements related thereto, to the extent such laws or regulations are applicable not economically desirable in connection with the repurchase conduct of the Notes pursuant to an Asset Sale Offer business with approval by the Agent, (D) dispose of cash or Advance Offer. To Cash Equivalents in the extent that the provisions ordinary course of business, (E) surrender or waive litigation rights or settle, release or surrender tort or other litigation claims of any securities laws kind if it is for the benefit of Amkor (as determined in good faith by the board of directors), and (F) sell or regulations conflict with otherwise dispose of any patents approved by the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in this Indenture by virtue thereofAgent.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Asset Sales. (a) The Company will Holdings shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, unless:
(1) the Company Holdings 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) ), as determined in good faith by Holdings, of the assets sold or otherwise disposed ofsubject to such Asset Sale; and
(2) except in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed have a fair market value in excess of the greater of $140.0 million and 15.0% of LTM EBITDA, at least 75% of the consideration for from such Asset Sale, together with all other Asset Sales since May 6, 2021 the Issue Date (on a cumulative basis)) (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received by the Company Holdings or a such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2clause (2):
(A) any liabilities (as shown on the Company’s of Holdings or any Restricted Subsidiary’s most recent 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 liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that (x) are (i) assumed by the transferee of any such assets (or a third party in connection with such transfer) or (iiy) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company Holdings or a its Restricted Subsidiary);Subsidiaries) and, in each case, for which Holdings and all of its Restricted Subsidiaries have been released,
(B) any securities, notes or other obligations or assets received by the Company Holdings or a such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company Holdings or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) or by their terms are required to be satisfied for cash or Cash Equivalents within 180 days following the closing of such Asset Sale;,
(C) 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 Holdings or any Restricted Subsidiary), to the extent that Holdings 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,
(D) consideration consisting of Indebtedness of Holdings (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not Holdings or any Restricted Subsidiary, and
(E) any Designated Non-Cash cash Consideration received by the Company Holdings or a such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by Holdings in good faith, taken together with all other Designated Non-Cash cash Consideration received pursuant to this clause (Ce) that is at that time outstanding, not to exceed the greater of (i) $400.0 183.0 million and (ii) 5.020.0% of Adjusted Consolidated Net Tangible Assets of the Company LTM EBITDA at the time of the receipt of such Designated Non-Cash Consideration, cash Consideration (with the fair market value of each such item of Designated Non-Cash cash Consideration being measured, measured pursuant to this clause (e) at the Company’s Holdings’ 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days 18 months after the later of (i) the date of such Asset Sale and (ii) receipt of any Net Proceeds of any Asset Sale Sale, (as may be extended pursuant to clause (2) by an Acceptable Commitment or a Second Commitment as set forth below, the “Asset Sale Proceeds Application Period”), the Company Issuer or a such Restricted Subsidiary, at its option, may apply an amount equal to such the Net Proceeds (the “Applicable Proceeds”):from such Asset Sale
(1) to repayreduce, redeem prepay, repay or repurchasepurchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities) or any Refinancing Indebtedness in respect thereof, and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary shall so repay any such Indebtedness (other than the Notes), the Issuer shall reduce Obligations under the Notes on a pro rata basis by, at its option, (i) redeeming Notes as provided under Section 3.07 hereof, (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to or higher than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of Senior other Secured Indebtedness (including the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(C) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Issuer or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary shall so repay any such Indebtedness (other than the Notes), the Issuer shall reduce Obligations under the Notes on a pro rata basis by, at its option, (i) redeeming Notes as provided under Section 3.07 hereof, (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to or higher than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or
(BD) Obligations in respect of Indebtedness of a Restricted Subsidiary that is not a GuarantorNon-Guarantor Subsidiary, other than Obligations Indebtedness owed to Holdings, the Company Issuer or another Restricted Subsidiary; provided, in the case of clause (C) above, (i) if an offer to purchase any Indebtedness of the Issuer or any Restricted Subsidiary is made, such amount shall be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer shall be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted SubsidiarySubsidiary of the Issuer declines the repayment of such Indebtedness owed to it from such Net Proceeds, such amount shall be deemed repaid to the extent of the declined Net Proceeds; or
(2) (i) to make invest (aincluding capital expenditures) in or commit to invest in Additional Assets (including by means of an Investment investment in Additional Assets by a Restricted Subsidiary); or (ii) to invest (including capital expenditures) in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas Business or (ii) that replace, in whole or in part, the properties or assets that replace the businesses, properties and/or assets that are the subject of such Asset Sale, with any such investment made by way of a capital or other lease valued at the present value of the minimum amount of payments under such lease (as reasonably determined by Holdings); provided that that, in the case of this clause (2), a binding commitment will shall be treated as a permitted application of the Applicable Net Proceeds from the date of such commitment so long as Holdings, the Company Issuer or a such other Restricted Subsidiary enters into such commitment or intent with the good faith expectation that such Applicable Net Proceeds will shall be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days 18 months after the receipt of such Applicable Net Proceeds) (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, Holdings, the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination (or, if later, 18 months after the receipt of such Net Proceeds); provided, further, further that if any such commitment Second Commitment is later cancelled or terminated for any reason before such Applicable Net Proceeds are applied, then such Applicable Net Proceeds will shall constitute Excess Proceeds (as defined below)on the date of such cancellation or termination; or
(3) any combination of the foregoing.
; provided that (c1) Pending pending the final application of the amount of any Applicable such Net Proceeds pursuant to this covenant, the Company and its Issuer or the applicable Restricted Subsidiaries may apply such Net Proceeds temporarily to reduce Indebtedness, Indebtedness (including under the Senior Credit Facilities) or otherwise use apply such Applicable Net Proceeds in any manner not prohibited by this Indenture, and (2) the IndentureIssuer (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than execution of a definitive agreement for the relevant Asset Sale, and consummation of the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (b) above with respect to such Asset Sale.
(c) To the extent that any portion of Net Proceeds payable in respect of the Notes is denominated in a currency other than Dollars, the amount thereof payable in respect of the Notes shall not exceed the net amount of funds in Dollars that is actually received by Holdings or the Issuer upon converting such portion into Dollars.
(d) The Notwithstanding any other provisions of this covenant, (i) to the extent that any of or all the Net Proceeds of any Asset Sale received or deemed to be received by a Foreign Subsidiary (a “Foreign Disposition”) is (x) prohibited or delayed by applicable local law, (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous organizational or administrative impediments from being repatriated to the United States, an amount equal to the Applicable portion of such Net Proceeds so affected shall not be required to be applied in compliance with this covenant, and such amounts shall not be so applied so long, but only so long, as the applicable local law, documents or agreements shall not permit repatriation to the United States (Holdings hereby agrees to use reasonable efforts (as determined in Holdings’ reasonable business judgment) to otherwise cause the applicable Foreign Subsidiary to within one year following the date on which the respective payment would otherwise have been required, promptly take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation), and if within one year following the date on which the respective payment would otherwise have been required, such repatriation of any of such affected Net Proceeds is permitted under the applicable local law, applicable organizational impediment or other impediment, an amount equal to such Net Proceeds (net of additional Taxes that would be payable or reserved against as a result of such repatriation but only to the extent such Taxes do not reduce Net Proceeds pursuant to the definition thereof) shall be promptly (and in any event not later than five Business Days after such repatriation could be made) applied in compliance with this covenant and (ii) to the extent that Holdings has determined in good faith that repatriation of any of or all the Net Proceeds of any Foreign Disposition would have a material adverse Tax consequence (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation), an amount equal to the Net Proceeds so affected will not be required to be applied in compliance with Section 4.10 hereof. The non-application of any prepayment amounts as a consequence of the foregoing provisions shall not, for the avoidance of doubt, constitute a Default or an Event of Default.
(e) When the Net Proceeds from the Asset Sales Sale that are not invested or applied as provided and within the time period set forth in Section 4.10(bthe preceding paragraph (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes as described in clause (1)(A) will or (1)(C) above, shall be deemed to constitute have been so applied whether or not such offer is accepted) exceeds the greater of $230.0 million and 25.0% of LTM EBITDA (such threshold, the “Asset Sale Threshold” and such amount of Net Proceeds that are less than or equal to the Asset Sale Threshold, “Declined Excess Proceeds,” and such amount of Net Proceeds that are in excess of the Asset Sale Threshold, “Excess Proceeds”. When ), then subject to the aggregate amount of Excess Proceeds exceeds $50.0 millionlimitations with respect to Foreign Dispositions set forth above, the Company will Issuer shall make an offer (an “Asset Sale Offer”) to all Holders of the Notes and, at the option of the CompanyIssuer, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is is, in the case of the Notes, in an amount equal to at least $2,000, 2,000 or an integral multiple of $1,000 in excess of $2,000, thereof 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 100100.0% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any any, to, but not including, the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture (orand, in respect of such Pari Passu Indebtedness, such other price, if any, as may be provided 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). The Company will Issuer shall commence an Asset Sale Offer with respect to the Excess Proceeds within 30 days after the date that expiration of the amount of Excess Proceeds exceeds $50.0 million Application Period by mailing or electronically delivering the notice required pursuant to Section 3.09the terms of this Indenture, with a copy to the Trustee, or otherwise in accordance with Applicable Procedures. The Company may Issuer may, at its option, satisfy the foregoing obligation obligations with respect to any Applicable Net Proceeds from an Asset Sale by making an offer to purchase Notes Asset Sale Offer with respect to such Net Proceeds prior to the amount expiration of the Proceeds Application Period (the “Advance Offer”) with respect to all or a part of the available Applicable 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 Applicable Proceeds in advance of being required to do so by this Indenture or with respect to any Declined Excess Proceeds.
(the “Advance Offer”). f) 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), such amount shall be referred to as the Company “Post-Asset Sale Offer Proceeds,” and its Restricted Subsidiaries the Issuer may use include any remaining Excess such Post-Asset Sale Offer Proceeds (or in the case of an Advance Offer, the Advance Portion) in Declined Excess Proceeds, and use such Declined Excess Proceeds for any manner purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or or the Pari Passu Indebtedness surrendered in an Asset Sale Offer by such holders thereof exceeds the amount of Excess Proceeds (or or, in the case of an Advance Offer, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, will Issuer shall select the Notes (while the Notes are in global form pursuant to be purchased in the manner described under Section 3.02 procedures of DTC) 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 aggregate principal amount of the Notes or such Pari Passu Indebtedness tendered with adjustments as necessary so tendered; provided that no Notes or Pari Passu Indebtedness will shall be repurchased in part selected and purchased 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 shall 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 Indenturezero. An Asset Sale Offer or Advance Offer may be made at 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.o
Appears in 1 contract
Sources: Indenture (Cushman & Wakefield PLC)
Asset Sales. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, unless:
(1) the Company Issuer or such Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) 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 7575.0% of the consideration for such Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), therefor received by the Company Issuer or a such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided provided, that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):amount of:
(A) any liabilities (as shown on the CompanyIssuer’s or any such Restricted Subsidiary’s most recent 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 Companyfootnotes thereto) of the Company Issuer or any such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 the Company Issuer or a its Restricted Subsidiary)Subsidiaries) and, in the case of clause (i) above, for which the Issuer and all of its Restricted Subsidiaries have been validly released by all applicable creditors in writing;
(B) any securities, notes or other obligations or assets received by the Company Issuer or a such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company Issuer or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset SaleSale and the fair market value of any earnout or similar obligation;
(C) any Designated Non-Cash cash Consideration received by the Company Issuer or a such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash cash Consideration received pursuant to this clause (Cc) that is at that time outstanding, not to exceed the greater of (ix) $400.0 million 175,000,000 and (iiy) 5.02.25% of Adjusted Consolidated Net Tangible Total Assets of the Company at the time of the receipt of such Designated Non-Cash cash Consideration, with the fair market value of each item of Designated Non-Cash cash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and without giving effect to subsequent changes in value;, and
(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 Issuer or a its Restricted SubsidiarySubsidiaries), to the extent that the Company Issuer 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed shall be deemed to be assumed by the transferee Cash Equivalents for purposes of this clause (or an Affiliate thereof)2) and for no other purpose.
(b) Within 365 450 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) belowSale, the “Asset Sale Proceeds Application Period”), the Company Issuer or a such Restricted Subsidiary, at its option, may apply an amount equal to such the Net Proceeds (the “Applicable Proceeds”):from such Asset Sale:
(1) to repay, redeem or repurchasepermanently reduce:
(A) Obligations in under the Senior Credit Facilities, and to correspondingly reduce commitments with respect of Senior Indebtedness; orthereto;
(B) Obligations under Secured Indebtedness of the Issuer or a Restricted Subsidiary, other than Indebtedness owed to the Issuer or a Restricted Subsidiary, which is secured by a Lien that is permitted by this Indenture, and to correspondingly reduce commitments with respect thereto;
(C) Obligations under other Senior Indebtedness (and to correspondingly reduce commitments with respect thereto); provided, that the Issuer shall equally and ratably reduce Obligations under the Notes as provided under Section 3.07 hereof or through open-market purchases (to the extent such purchases are at or above 100.0% of the principal amount thereof) or by making an offer (in respect accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Notes at 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes to be repurchased, to the date of repurchase; or
(D) Obligations under Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Obligations Indebtedness owed to the Company Issuer or a another Restricted Subsidiary; orprovided, that (I) if an offer to purchase any Indebtedness of a Restricted Subsidiary of the Issuer is made in accordance with the terms of such Indebtedness, the obligation to repay or reduce Indebtedness of a Restricted Subsidiary will be deemed satisfied to the extent of the amount of the offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (II) if the holder of any Indebtedness of a Restricted Subsidiary of the Issuer declines the repayment of such Indebtedness owed to it from such Net Proceeds, the obligation to repay or reduce Indebtedness of a Restricted Subsidiary will be deemed satisfied to the extent of the declined Net Proceeds;
(2) to make (a) an Investment in any one or more businesses; provided provided, that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Company Issuer or any of its Restricted Subsidiary Subsidiaries, as the case may be, 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 Properties, acquisitions of properties or (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
each of (a), (b), (c) and (d) and this clause (e), either (i) that are or will be used or useful in a Similar Business; or
(3) to make (a) an Investment in any one or more businesses; provided, that such Investment in any business is in the Oil form of the acquisition of Capital Stock and Gas Business results in the Issuer or any of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) acquisitions of properties or (iic) that replaceacquisitions of other assets that, in whole or in parteach of (a), (b) and (c), replace the businesses, properties or and/or assets that are the subject of such Asset Sale; provided that provided, that, in the case of this clause clauses (2)) and (3) of Section 4.10(b) hereof, a binding commitment will shall be treated as a permitted application of the Applicable Net Proceeds from the date of such commitment so long as the Company Issuer or a such Restricted Subsidiary enters into such commitment with the good faith expectation that such Applicable Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event that any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination (or, if later, 365 450 days after the receipt of such Applicable Net Proceeds); provided, further, that if any such commitment Second Commitment is later cancelled or terminated for any reason before such Applicable Net Proceeds are applied, then such Applicable Net Proceeds will shall constitute Excess Proceeds (as defined below); or
(3) any combination of the foregoing.
(c) Pending the final application of the amount of any Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Any Net Proceeds from the Asset Sales Sale that are not invested or applied as provided and within the time period set forth in Section 4.10(bthe preceding paragraph (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes, as described in clause (b)(1)(C) above, will be deemed to have been so applied whether or not such offer is accepted) will be deemed to constitute “Excess Proceeds”. .” When the aggregate amount of Excess Proceeds exceeds $50.0 million125,000,000, the Company will Issuer shall make an offer to all Holders and, at the option of the CompanyIssuer, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to at least $2,000€100,000, or an integral multiple of $€1,000 in excess of $2,000thereof, that may be purchased out of the Excess Proceeds at an offer price, in the case of the Notes, price in cash in an amount equal to 100100.0% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other lesser price, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to 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)3.09. The Company Issuer will commence an Asset Sale Offer with respect to Excess Proceeds within 30 days fifteen Business Days after the date that the amount of Excess Proceeds exceeds exceed $50.0 million 125,000,000 by mailing or electronically delivering the notice required pursuant to Section 3.09, with a copy to the Trustee, Trustee or otherwise in accordance with Applicable Procedures. The Company Issuer may satisfy the foregoing obligation obligations with respect to any Applicable Net Proceeds from an Asset Sale by making an offer to purchase Notes Asset Sale Offer with respect to the amount of all or part of the available Applicable such Net Proceeds (the “Advance Portion”) prior to the expiration of the Asset Sale Proceeds Application Period relevant 450 days (or such longer period provided above) or with respect to the amount Excess Proceeds of all $125,000,000 or a part of the available Applicable Proceeds in advance of being required to do so by this Indenture (the “Advance Offer”)less. 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 OfferProceeds, the Advance Portion), the Company and its Restricted Subsidiaries Issuer may use any remaining Excess Proceeds (or for general corporate purposes, subject to other covenants contained 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 shall be reset to zero (regardless of whether there are any remaining Excess Proceeds (or Advance Portion) upon such completion).
(d) and Pending the Company final application of any Net Proceeds pursuant to this Section 4.10, the holder of such Net Proceeds may use apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility, including under the Senior Credit Facilities, or otherwise invest such Net Proceeds in any remaining Excess Proceeds for any purpose manner not otherwise prohibited under by this Indenture. An Asset Sale Offer or Advance Offer may be made at 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company Issuer will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(gf) The CompanyIssuer’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1) the Company or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility responsibilities for, any liabilities (other than any contingent liabilities, contingent or otherwise, in connection with such )) at the time of the Asset Sale) Sale at least equal to the fair market value Fair Market Value (measured at as of the time date of contractually agreeing the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or 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 its Restricted Subsidiaries in the Asset Sale (considered together on a cumulative basis, with all consideration received by the Company or any of its Restricted SubsidiarySubsidiaries in respect of other Asset Sales consummated since March 22, as the case may be, 2018) is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(A) any liabilities (liabilities, as shown on the Company’s or any of its Restricted Subsidiary’s Subsidiaries’ most recent 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 such Restricted Subsidiary, Subsidiary (other than contingent liabilities and Subordinated Debt) that are by their terms subordinated in right of payment to the Notes assumed or any Guarantor’s Guarantee of the Notes, that are (i) assumed forgiven by the transferee of any such assets pursuant to a novation or indemnity agreement (or a third party in connection with such transfer) or (ii) otherwise cancelled or terminated in connection other legal documentation with the transaction with such transferee (other than intercompany debt owed to same effect) that releases the Company or a such Restricted Subsidiary)Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(B) any securities, notes or other obligations or assets received by the Company or a any of its Restricted Subsidiary Subsidiaries from such transferee or in connection with such that are, within 90 days after the Asset Sale (including earnouts and similar obligations) that are Sale, converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalentscash, 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 Salereceived in that conversion;
(C) any Additional Assets of the kind referred to in clause (2) of Section 4.10(b); and
(D) any Designated Non-Cash cash Consideration received by the Company or a any of its Restricted Subsidiary Subsidiaries in respect of 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 (CD) that is at that time outstandingsince the date of this Indenture, not to exceed the greater of (i) $400.0 15.0 million and (ii) 5.02.0% of Adjusted the Company’s Consolidated Net Tangible Assets of the Company at the time of the receipt of such Designated Non-Cash Consideration, (with the fair market value Fair Market Value of each item of Designated Non-Cash cash Consideration being measured, at determined in good faith by the Company’s option, either at the time of contractually agreeing to such Asset Sale or Company at the time received andin respect of an Asset Sale, in either case, and 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds from Asset Sales or, if the Company or any of its Restricted Subsidiaries has entered into a binding commitment or commitments with respect to any Asset Sale (as may be extended pursuant to clause 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 Asset Sale Proceeds Application Period”)Sales and (y) 180 days after the entering into of such commitment or commitments, the Company or a any of its Restricted Subsidiary, at its option, Subsidiaries may apply an amount equal to the amount of such Net Proceeds (at its option to any combination of the “Applicable Proceeds”):following:
(1) to repay, redeem or 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; or
(2) to make repurchase (a) an Investment in any one or more 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 SubsidiaryPriority Lien Debt, (b) capital expenditures, the Notes or (c) any other expenditures made with respect to Oil and Gas Properties, (d) acquisitions by Junior Lien Debt; provided that if the Company or any Restricted Subsidiary of properties shall so repay other Junior Lien Debt pursuant to clause (including fee and leasehold interests) or (e) acquisitions by c), the Company shall have also used (or any Restricted Subsidiary of other assets, other than securitiesmade an offer, in the case of clauses
(a) (d) and this clause (e)iii) below, either (iwith) that are or will be used or useful in the Oil and Gas Business or (ii) that replace, in whole or in part, the properties or assets that are the subject a portion of such Asset Sale; provided that Net Proceeds pro rata in the case of this clause (2), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied proportion to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant thereof used to this covenant, so repay other Junior Lien Debt (based on the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate respective principal amount amounts of the Notes and such Pari Passu Indebtedness that is in an amount equal other Junior Lien Debt prior to at least $2,000such repayment) (the “Pro Rata Amount”) to (i) redeem the Pro Rata Amount of Notes as provided under Section 3.07, or an integral multiple (ii) purchase the Pro Rata Amount of $1,000 in excess of $2,000, Notes that may be purchased out of repurchased through open-market purchases (to the Excess Proceeds extent such purchases are at an offer price, in the case of the Notes, in cash in an amount equal to or above 100% of the principal amount thereof thereof) or (or accreted value thereof, if less), plus accrued and unpaid interest, if any (or, in respect iii) make an offer to purchase the Pro Rata Amount of such Pari Passu Indebtedness, such other price, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to, but excluding, the date fixed for the closing of such offer, Notes pursuant to an offer made to all Holders 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). The Company will commence 4.10(c) for an Asset Sale Offer with at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid;
(2) in the case of Net Proceeds from Asset Sales other than Collateral, to repay, redeem or repurchase any Senior Debt, including any ABL Debt;
(3) to invest in or acquire Additional Assets; or
(4) to make capital expenditures in respect of a Permitted Business. Pending the final application of any such Net Proceeds, the Company or any of its Restricted Subsidiaries may invest the Net Proceeds in any manner that is not prohibited by this Indenture.
(c) An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in clauses (1) through (4) of Section 4.10(b) will constitute “Excess Proceeds within 30 days Proceeds.” Within ten Business Days after the date that the aggregate amount of Excess Proceeds exceeds $50.0 million by mailing or electronically delivering 30.0 million, 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 will make an offer (an “Asset Sale by making an offer Offer”) to purchase all Holders of Notes and other Junior Lien Debt to purchase, prepay or redeem with respect to the Net Proceeds of such Asset Sales the maximum principal amount of Notes and other Junior 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 part redeemed out of the available Applicable Proceeds (Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the “Advance Portion”) principal amount, plus accrued and unpaid interest, if any, to the date of repurchase, prepayment or redemption, subject to the rights of Holders on the relevant record date to receive interest due on an interest payment date that is on or prior to the expiration date of the Asset Sale repurchase, prepayment or redemption, and will be payable in cash. If any Excess Proceeds Application Period with respect to the amount remain after consummation 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 or any of its Restricted Subsidiaries may use any remaining such Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in for any manner purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes or other Junior Lien Debt tendered in (or accreted value, as applicablerequired to be prepaid or redeemed in connection with) of Notes and/or the Pari Passu Indebtedness surrendered in an such Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, Trustee will select the Notes and the Trustee or agent for such other Junior Lien Debt 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 Indebtednessby lot (unless otherwise required by law), such purchases will be made on a pro rata basis based on the accreted value amounts tendered or principal amount of the Notes required to be prepaid or redeemed (with such Pari Passu Indebtedness tendered with adjustments as necessary may be deemed appropriate by the Company so that no Notes or Pari Passu Indebtedness will be repurchased other Junior Lien Debt purchased in part remain outstanding in an unauthorized principal denomination). Upon completion of any such each 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 at zero.
(regardless d) Notwithstanding the foregoing paragraphs of whether there are any remaining Excess Proceeds (this Section 4.10, the sale, conveyance or Advance Portion) upon such completion) and other disposition of all or substantially all of the properties or assets of the Company may use any remaining Excess Proceeds for any purpose 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 otherwise prohibited under by this Indenture. An Asset Sale Offer or Advance Offer may be made at 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)Section 4.10.
(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 such those laws or and regulations are applicable in connection with the each 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 the provisions this Section 4.10, or compliance with this Section 4.10 would constitute a violation of this Indentureany 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 described in under this Indenture Section 4.10 by virtue thereofof such compliance.
(gf) 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 Company’s obligation 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 make 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 Priority Lien Debt as specified in Section 4.10(c) 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 offer interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to repurchase 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 (or in denominations of $1.00 or integral multiples of $1.00 in the case of any PIK Notes);
(F) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be waived or modified required to surrender the Note, with the written consent 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 Holders Offer Period, a letter or electronic transmission setting forth the name of a majority in the Holder, the principal amount of the then 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 Priority Lien Debt surrendered by holders thereof exceeds the Offer Amount, the Company will select the Notes and other Priority Lien Debt to be purchased by lot (unless otherwise required by law) based on the principal amount of Notes and such other Priority Lien Debt surrendered (with such adjustments as may be deemed appropriate by the Company so that Notes or other Priority Lien Debt purchased in part remains outstanding Notesin an unauthorized principal denomination); 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 1 contract
Sources: Indenture (CSI Compressco LP)
Asset Sales. (a) The Company will not, any Specified Sale; (b) Dispositions of assets (i) among the Borrower and will not permit the Guarantors and (ii) from any Restricted Subsidiary to, consummate an Asset Sale, unless:
(1) the Company that is not a Guarantor to any Loan Party or such another Restricted Subsidiary, as the case may be, receives consideration ; (including c) any sale of Transferred Assets by way of relief from, or by any other such Person assuming responsibility for, any liabilities, contingent or otherwise, to a Receivables Financing SPC and subsequently to a Receivables Financier in connection with a Permitted Receivables Financing; (d) sale and leaseback transactions permitted by Section 8.06; (e) to the extent constituting a Disposition, the creation of Liens, the making of investments, the consummation of fundamental changes and the making of Restricted Payments permitted by Sections 8.02, 8.03 (other than Section 8.03(a)(iv)), 8.04 and 8.07, respectively; (f) to the extent constituting a Disposition, the unwinding of any Swap Contract pursuant to its terms; (g) transfers of condemned real property as a result of the exercise of “eminent domain” or other similar policies to the respective Governmental Authority or agency that has condemned such Asset Saleproperty (whether by deed in lieu of condemnation or otherwise), and transfers of properties that have been subject to a casualty to the respective insurer of such property as part of an insurance settlement; (h) other Dispositions; provided that to the extent any such Disposition or series of related Dispositions involve assets or property with an aggregate fair market value in excess of $10,000,000 (i) no Event of Default shall have occurred and be continuing at the time of such Disposition, (ii) such Disposition is for 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, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent 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 CompanyBorrower) and (iii) the consideration received by the Borrower or the applicable Restricted Subsidiary for such Disposition shall consist of at least 75% cash and Cash Equivalent (it being understood that for purposes of this clause (iii) the Company following shall be deemed to be cash and Cash Equivalents (x) any liabilities relating to any asset or of any Restricted Subsidiary, Subsidiary that is subject to such Disposition (other than liabilities that are by their terms expressly subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (iObligations) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of that the Borrower and its Restricted Subsidiaries are released from any liability thereunder, (y) any note or security that is sold for cash or and Cash Equivalents received) by the Borrower or the applicable Restricted Subsidiary within 180 days following the closing date of such Asset Sale;
receipt thereof and (Cz) any Designated Non-Non- Cash Consideration received by the Company or a Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with amount for all other Designated Non-Cash Consideration received pursuant to this clause (C) that is at that time outstanding, such Dispositions not to exceed the greater of $50,000,000 at any time outstanding (without giving effect to any write-down or write–off thereof)); (i) $400.0 million non-exclusive licenses or sublicenses of Intellectual Property in the ordinary course of business and abandonment or lapse of Intellectual Property that is, in the reasonable business judgment of the Borrower or its Restricted Subsidiary, no longer used in or useful in the conduct of their respective businesses; (j) sales (i) of non-core assets acquired pursuant to a Permitted Acquisition or other investment permitted under this Agreement, 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 made in connection with such Asset Sale;
(E) any Investment, Capital Stock, assets, property or capital a Permitted Acquisition or other expenditure of the kind referred to in Section 4.10(b)(2); and
(F) with respect to any Asset Sale of Oil and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and investment permitted under this clause (e), either (i) Agreement that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied made to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.obtain the
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, consummate cause or make an Asset Sale, unless:
(1) the Company or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value Fair Market Value (measured at as determined in good faith by the time of contractually agreeing to such Asset SaleCompany) 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), therefor received by the Company or a such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):amount of:
(Ai) any liabilities (as shown on the Company’s or any such Restricted Subsidiary’s most recent 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 Companythereto) of the Company or any Restricted Subsidiary, Subsidiary of the Company (other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, ) that are (i) assumed by the transferee of any such assets (or a third party in connection with such transfer) or assets, and
(ii) otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or a Restricted Subsidiary);
(B) any securities, notes or other obligations or other securities or assets received by the Company or a such Restricted Subsidiary of the Company from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary of the Company into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or received), shall each be deemed to be Cash Equivalents received) within 180 days following for the closing purposes of such Asset Salethis Section 4.06;
(C3) in addition to complying with the requirement in clause (4) below, with respect to any Designated Non-Cash Consideration received by transaction or series of transactions constituting an Asset Sale involving the sale of one or more assets for aggregate consideration in excess of $25.0 million, the Company or a any of its Restricted Subsidiary Subsidiaries, as the case may be, receives an appraisal from an independent valuation expert of national standing that the consideration to be received 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 or above the greater of (i) $400.0 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)Fair Market Value; and
(F4) with respect to any transaction or series of transactions constituting an Asset Sale involving the sale of Oil and Gas Properties disposed one or more assets for aggregate consideration in excess of $1.0 million, the Company delivers to the Trustee a resolution adopted in good faith by the majority of the disinterested members of the Board of Directors of the Company or any equivalent governing body of a Restricted Subsidiary in which Subsidiary, determining that the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed consideration to be assumed by received for such asset is at or above the transferee Fair Market Value, and set forth in an Officers’ Certificate certifying that such Asset Sale complies with this clause (or an Affiliate thereof4).
(b) Within 365 days six months after the Company or any Restricted Subsidiary of the Company’s receipt of any the Net Cash Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or a such Restricted SubsidiarySubsidiary may apply the Net Cash Proceeds from such Asset Sale, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or repurchase:
(Ai) to permanently reduce Indebtedness constituting First Lien Obligations and, in the case of revolver Obligations thereunder, to correspondingly reduce commitments with respect of Senior Indebtedness; orthereto;
(Bii) to permanently reduce Obligations under (x) other Permitted Second Lien Obligations of the Company or the Subsidiary Guarantors (provided that if the Company or any Subsidiary Guarantor shall so reduce such Obligations under such other Permitted Second Lien Obligations, the Company will equally and ratably reduce Obligations under the Notes if the Notes are then prepayable or, if the Notes may not then be prepaid, by making an offer (in respect accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, the pro rata principal amount of Notes that would otherwise be prepaid) or (y) Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case, other than Obligations Indebtedness owed to the Company, Holdings or any of their Subsidiaries (provided that in the case of any reduction of any revolving obligations pursuant to this clause (ii), the Company or such Restricted Subsidiary shall effect a Restricted Subsidiary; orcorresponding reduction of commitments with respect thereto);
(2iii) to make (a) an Investment in any one or more businesses; businesses (provided that if such Investment in any business is in the form of the acquisition of Capital Stock and of a Person, such acquisition results in the Company or any such Person becoming a Restricted Subsidiary owning an amount of the Capital Stock of such business such that it constitutes Company), or continues to constitute a Restricted Subsidiary, (b) capital expenditures, (c) other expenditures made with respect to Oil and Gas Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the each case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in a Similar Business; and/or
(iv) to make an Investment in any one or more businesses (provided that if such Investment is in the Oil and Gas Business form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Company), properties or (ii) assets that replace, in whole or in part, replace the properties or and assets that are the subject of such Asset Sale, in each case used or useful in a Similar Business; provided that in the case of this clause clauses (2)iii) and (iv) above, a binding commitment will shall be treated as a permitted application of the Applicable Net Cash Proceeds from the date of such commitment so long as and, in the Company or a Restricted Subsidiary enters into event such commitment with the good faith expectation that such Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such binding commitment is later cancelled canceled or terminated for any reason before such Applicable Net Cash Proceeds are so applied, then the Company or such Applicable Proceeds will constitute Excess Proceeds (as defined below); or
(3) any combination Restricted Subsidiary enters into another binding commitment within three months of such cancellation or termination of the foregoing.
prior binding commitment; and provided further that solely for the purposes of clauses (ciii) and (iv) above, the definition of Similar Business is limited to any business engaged in by the Company or any of its Restricted Subsidiaries on the Issue Date. The amount of Net Cash Proceeds from Asset Sales that may be invested pursuant to clauses (iii) and (iv) above may not exceed $10.0 million in any twelve-month period and $40.0 million in the aggregate for all Asset Sales after the Issue Date. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantsuch Net Cash Proceeds, the Company and its or such Restricted Subsidiaries Subsidiary of the Company may temporarily reduce IndebtednessIndebtedness under the revolving credit facility provided under the Credit Agreement, if any, or otherwise use invest such Applicable Net Cash Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Cash Equivalents or Investment Grade Securities. Any Net Cash Proceeds from any Asset Sales Sale that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will above shall be deemed to constitute “Excess Proceeds”. .” When the aggregate amount of Excess Proceeds exceeds $50.0 10.0 million, the Company will shall make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), ) to purchase the maximum aggregate all Holders of Notes (including PIK Notes and any increased principal amount of the Notes as payment for PIK Interest) and such to all holders of other Pari Passu Indebtedness that is containing provisions similar to those set forth in an this Indenture with respect to Asset Sales to purchase or prepay the maximum principal amount equal to at least $2,000of such Notes and Pari Passu Indebtedness, or an integral multiple of $1,000 in excess of $2,000as appropriate, on a pro rata basis, that may be purchased out of the Excess Proceeds at an offer price, in the case of the Notes, price in cash in an amount equal to 100% of the principal amount thereof (or in the event such other Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof, if less), plus accrued and unpaid interest, if any together with an amount of cash equal to all accrued and unpaid PIK Interest (or, in respect of or such Pari Passu Indebtedness, such other lesser price, if any, as may be provided for by the terms of such Pari Passu other Indebtedness), to, but excluding, to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Section 3.09 (or4.06 and, in respect the case of such Pari Passu IndebtednessNotes, the agreement or instrument governing the terms thereof)is an integral multiple of $1.00. The Company will shall commence an Asset Sale Offer with respect to Excess Proceeds within 30 days ten Business Days after the date that the amount of Excess Proceeds exceeds exceed $50.0 10.0 million by mailing or electronically delivering the notice required pursuant to the terms of Section 3.094.06(f), 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 other 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)Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Proceeds (or for general corporate purposes subject to any other restrictions set forth 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 valueof Notes and Pari Passu Indebtedness, as applicable) of Notes and/or the Pari Passu Indebtedness appropriate, surrendered in an Asset Sale Offer by holders or lenders thereof exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, will Trustee shall select the Notes to be purchased in the manner described under in 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 denomination4.06(e). 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 shall 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 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)zero.
(e) [Reserved].
(fc) 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(gd) The Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Cash Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.06(b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company or a Wholly Owned Restricted Subsidiary is acting as a Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents or Investment Grade Securities, as directed in writing by the Company’s obligation , and to make an offer be held for payment in accordance with the provisions of this Section 4.06. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Company shall deliver to repurchase the Trustee for cancellation the Notes pursuant or portions thereof that have been properly tendered to this Section 4.10 may and are to be waived accepted by the Company. The Trustee (or modified with a Paying Agent, if not the written consent Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee is greater than the purchase price of the Notes tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with Section 4.06.
(e) Holders electing to have a Note purchased shall be required to surrender the Notes, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than two Business Days prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of a majority in the Holder, the principal amount of the then outstanding NotesNotes which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Notes purchased. If at the end of the Offer Period more Notes are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, selection of such Notes for purchase shall be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which such Notes are listed, or if such Notes are not listed by lot or such other method as the Trustee shall deem fair and appropriate (and in such manner as complies with applicable legal requirements); provided that the Trustee shall not select Notes for purchase which would result in a Holder with a principal amount of Notes less than the minimum denomination to the extent practicable.
(f) Notices of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, or delivered in accordance with the procedures of the Depository at least 30 but not more than 60 days before the purchase date to each Holder of Notes at such Holder’s registered address. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
(g) A new Note in principal amount equal to the unpurchased portion of any Notes purchased in part shall be issued in the name of the Holder thereof upon cancellation of the original Note. On and after the purchase date, unless the Company defaults in payment of the purchase price, interest shall cease to accrue on Notes or portions thereof purchased.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale (including a Sale of Designated Assets) unless:
(1) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such the Asset Sale) Sale at least equal to the fair market value (measured at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and;
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration for such received in the Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), received Sale by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the following will shall be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(A) any liabilities (liabilities, as shown on the Company’s or any Restricted Subsidiary’s 's most recent balance sheet or in the notes thereto or, if incurred or accrued subsequent to the date of such consolidated 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 Guarantor’s Guarantee of the Notes, ) that are (i) assumed by the transferee of any such assets (pursuant to a customary novation 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 similar agreement that releases the Company or a such Restricted Subsidiary)Subsidiary from further liability;
(B) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are promptly, subject to ordinary settlement periods, converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalentscash, 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;received in that conversion; and
(C) any Designated Non-Cash Consideration received by except in the Company or case of 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) $400.0 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 measuredAssets, at the Company’s option, either at the time of contractually agreeing to such Asset Sale any stock 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 assets of the kind referred to in clauses (4) or (6) of Section 4.10(b)(24.10(b); and
(F3) with respect to any in the case of a Sale of Designated Assets other than Canadian Gas Assets, the Company (or the Restricted Subsidiary, as the case may be) shall deposit the Net Proceeds as cash collateral in a segregated account (a "Designated Asset Sale of Oil and Gas Properties disposed of Proceeds Account") held by the Collateral Trustee or its agent to secure the Secured Obligations; provided, that for so long as the terms of any of the Company's senior unsecured notes that were issued prior to August 10, 2000 would prevent such a pledge by a Restricted Subsidiary, the Company shall deposit with the Collateral Trustee or any its agent an amount of cash equal to the Net Proceeds as cash collateral to secure the Secured Obligations, and the applicable Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related shall not be obligated to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof)do so.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, other than a Sale of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Designated Assets that are not Canadian Gas Assets, the Company (or a the applicable Restricted Subsidiary, at its option, as the case may be) may apply an amount equal to such those Net Proceeds (the “Applicable Proceeds”)::
(1) to repay, redeem or repurchase:repay Priority Lien Debt and/or cash collateralize letters of credit constituting Priority Lien Debt;
(A2) Obligations in the case of an Asset Sale by a Restricted Subsidiary, to repay or repurchase Indebtedness of Calpine Canada Energy Finance ULC and/or Calpine Canada Energy Finance II ULC existing on the date of this Indenture;
(3) in the case of an Asset Sale by a Restricted Subsidiary, to repay or repurchase Indebtedness of any Restricted Subsidiary and, if such Indebtedness is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(4) to acquire all or substantially all of Senior Indebtednessthe assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(5) to make a capital expenditure; 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; or
(26) to make (a) an Investment in any one or more 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) acquire other expenditures made with respect to Oil and Gas Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) assets that are or will be not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business or a Permitted Business.
(iic) 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within Within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, any Net Proceeds from an Asset Sale that if any such commitment is 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 constitutes a Sale of the foregoing.
(c) Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantDesignated Assets other than Canadian Gas Assets, the Company and its (or the Restricted Subsidiaries Subsidiary that disposed of those Designated Assets, as the case may temporarily reduce be) may apply those Net Proceeds to purchase other assets that would constitute Designated Assets or to repay Priority Lien Debt and/or cash collateralize letters of credit constituting Priority Lien Debt and, if such Priority Lien Debt is revolving credit Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indentureto correspondingly reduce commitments with respect thereto.
(d) The amount equal to the Applicable Any Net Proceeds from Asset Sales (including Sales of Designated Assets) that are not applied or invested or applied as provided and within in the time period set forth in preceding clauses of this Section 4.10(b) will be deemed to 4.10 shall constitute “"Excess Proceeds”. ." When the aggregate amount of Excess Proceeds exceeds $50.0 million, or at such earlier point as may be elected by the Company, the Company will shall make an offer to all Holders and, at the option holders of the Company, to any Notes and all holders of any other Indebtedness that is pari passu with the Notes and equally and ratably secured 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, including the 2010 Notes, the 2013 Notes, the Term Loans and each series of Existing Indebtedness that contains similar asset sale provisions, when applicable (“Pari Passu Indebtedness” and such offer, an “"Asset Sale Offer”"), to purchase or redeem the maximum aggregate principal amount of the Notes notes and such Pari Passu other pari passu Indebtedness that is in an amount equal to at least $2,000, or an integral multiple of $1,000 in excess of $2,000, that may be purchased or redeemed out of the Excess Proceeds at an (including each series of Existing Indebtedness that contains similar asset sale provisions). The offer price, price in the case of the Notes, in cash in an amount any Asset Sale Offer shall be equal to 100% of the principal amount thereof (or accreted value thereof, 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 provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to the date fixed for the closing of such offerpurchase, and shall be payable in accordance with the procedures set forth in Section 3.09 (or, in respect cash. If any Excess Proceeds remain after consummation of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). The Company will commence an Asset Sale 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 those Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in for any manner purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the Pari Passu notes and other pari passu Indebtedness surrendered in an tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, will Company shall select the Notes to be purchased in the manner described under Section 3.02 and the Company will select such Pari Passu other 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 denominationbasis. Upon completion of any such each 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 shall 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 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)zero.
(e) [Reserved]Notwithstanding the foregoing, to the extent that any or all of the Net Proceeds of any Foreign Asset Sale is prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Proceeds so affected shall not be required to be applied at the time provided above, but may be retained by the applicable Restricted Subsidiary so long, but only so long, as the applicable local law shall not permit repatriation to the United States. The Company shall promptly take or cause the applicable Restricted Subsidiary to promptly take all actions required by the applicable local law to permit such repatriation. Once such repatriation of any of the affected Net Proceeds is permitted under the applicable local law, the repatriation shall be immediately effected and the repatriated Net Proceeds shall be applied in the manner set forth in this Section 4.10 as if the Asset Sale had occurred on the date of such repatriation.
(f) Notwithstanding the foregoing, to the extent that the Board of Directors determines, in good faith, that repatriation of any or all of the Net Proceeds of any Foreign Asset Sale would have a material adverse tax consequence to the Company, the Net Proceeds so affected may be retained outside of the United States by the applicable Restricted Subsidiary for so long as such material adverse tax consequence would continue.
(g) 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 such those laws or and regulations are applicable in connection with the each repurchase of the Notes notes pursuant to an Asset Sale Offer or Advance Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations described in under the Asset Sale provisions of this Indenture by virtue thereofof such conflict.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Indenture (Calpine Corp)
Asset Sales. (a) The Company Borrower will not, and will not permit any Restricted Subsidiary to, consummate consummate, directly or indirectly, an Asset Sale, unless:
(1) the Company Borrower or such Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) 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), therefor received by the Company Borrower or a such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and
(3) to the extent that any consideration received by the Borrower or any Restricted Subsidiary in such Asset Sale (including, for avoidance of doubt, any Designated Non-cash Consideration and any assets received in a Permitted Asset Swap) consists of assets of the type that would constitute Collateral, such assets, including the assets of any Person that becomes a Subsidiary Guarantor as a result of such transaction, are as soon as reasonably practicable (and in any event within 90 days) after their acquisition added to the Collateral. Within 365 days after the receipt of any Net Proceeds of any Asset Sale, the Borrower or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale,
(i) to prepay Loans (or any corresponding Revolving Notes) and correspondingly reduce any outstanding Commitments in accordance with Sections 2.11 and 2.09; provided that reductions in Commitments pursuant to this clause (i) shall not be required to the extent that such reductions would cause the Total Commitment to be less than $25,000,000 ;
(ii) to make one or more Asset Sale Offers in accordance with the terms of the Senior Secured Notes Indentures;
(iii) to make (A) one or more Investments in any business or businesses, provided that any such Investment is in the form of the acquisition of Capital Stock that results in the Borrower or a Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes or continues to constitute a Restricted Subsidiary, (B) capital expenditures or (C) acquisitions of other assets that are, in the case of each of (A), (B) and (C), used or useful in a Similar Business or replace the businesses, properties and/or assets that are the subject of such Asset Sale (any businesses, properties or assets acquired pursuant to clause (A), (B) or (C) together, the “Additional Assets”); provided that, without limitation of Section 5.12, any such Additional Assets acquired with Net Proceeds from an Asset Sale of Collateral are as soon as reasonably practicable (and in any event, within 90 days) after their acquisition added to the Collateral; or
(iv) to the extent such Net Proceeds are not from Asset Sales of Collateral, to permanently reduce Indebtedness of a Restricted Subsidiary that is not the Borrower or a Subsidiary Guarantor, other than Indebtedness owed to the Borrower, a Subsidiary Guarantor or a Restricted Subsidiary; provided that, in the case of clause (iii) above, a binding commitment to acquire Additional Assets shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Borrower or such 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 (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, then such Net Proceeds shall constitute Excess Proceeds unless the Net Proceeds are otherwise applied pursuant to any or all of clauses (i) through (iv) above, including, subject to the proviso below, the entry into a new Acceptable Commitment, prior to the later of (x) the date that is six months following the date of such cancellation or termination or (y) the expiration of the Application Period; provided, further that the Borrower or such Restricted Subsidiary may only enter into a new Acceptable Commitment under the foregoing provision one time with respect to each Asset Sale. Any Net Proceeds from the Asset Sales covered by this clause (a) that are not invested or applied as provided and within the time period set forth in the preceding paragraph, less the amount of cash applied by the Borrower during the six months preceding the date of receipt of such Net Proceeds to redeem the Senior Secured Notes pursuant to the Senior Secured Indentures (other than any such cash applied in respect of accrued and unpaid interest), will be deemed to constitute “Excess Proceeds”; provided that, in the event there have been multiple Asset Sales, cash applied with respect to any particular redemption pursuant to such paragraph shall only be deducted from the calculation of Excess Proceeds one time.
(b) Pending the final application of any Net Proceeds pursuant to this Section 6.03, the holder of such Net Proceeds may apply such Net Proceeds to prepay Loans (or any corresponding Revolving Notes) in accordance with Section 2.09 or otherwise invest such Net Proceeds in any manner not prohibited by this Agreement.
(c) For purposes of this Section 6.03, the following will be are deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):Equivalents:
(Ai) any liabilities (as shown on the CompanyBorrower’s or any such Restricted Subsidiary’s most recent 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 shown on the CompanyBorrower’s or a such Restricted Subsidiary’s consolidated balance sheet or in the notes footnotes 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 CompanyBorrower) of the Company Borrower or any Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (or a third party in connection with such transfer) or (ii) are otherwise cancelled or terminated extinguished in connection with the transaction with transactions relating to such transferee (other than intercompany debt owed to Asset Sale) and for which the Company or a Borrower and all Restricted Subsidiary)Subsidiaries have been validly released by all creditors in writing;
(Bii) any securities, notes or other obligations or assets received by the Company Borrower or a such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company Borrower or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;; and
(Ciii) any Designated Non-Cash cash Consideration received by the Company Borrower or a such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash cash Consideration received pursuant to this clause (Ciii) that is at that time outstanding, not to exceed the greater of (i) $400.0 million 15,000,000 and (ii) 5.03.0% of Adjusted Consolidated Net Tangible Total Assets of the Company at the time of the receipt of such Designated Non-Cash cash Consideration, with the fair market value of each item of Designated Non-Cash cash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Revolving Credit Agreement (Community Choice Financial Inc.)
Asset Sales. (a) The Company will not, and neither Parent nor the Company will not permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate the sale, lease (except under an Internal Charter or a Drilling Contract), conveyance or other disposition of any Vessel or any right to a Vessel or a construction contract respecting the construction of a Vessel. In addition, the Company will not, and neither Parent nor the Company will permit any of the Restricted Subsidiaries to, directly or indirectly, consummate any other Asset Sale, Sale unless:
(1) the Company or such the Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such the Asset Sale) Sale at least equal to the fair market value (measured at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration for received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash; provided, however, to the extent that any disposition in such Asset SaleSale was of Collateral, together the non-cash consideration received is pledged as Collateral under the Collateral Agreements contemporaneously with all such sale, in accordance with the requirements set forth in this Indenture. For purposes of this Section 4.18, 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 Asset Sales since May 6than 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 so long as the Company or such Restricted Subsidiary are released from further liability;
(B) any securities, 2021 (on a cumulative basis), Notes or other obligations received by the Company or a 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, to the extent of the cash received in that conversion; and
(C) any stock or assets of the kind referred to in clauses (2) or (4) of paragraph (b) of this Section 4.18. Any Asset Sale pursuant to an Involuntary Transfer shall not be required to satisfy the conditions set forth in clauses (1) and (2) of this Section 4.18(a).
(b) Within 360 days after the receipt of any Net Proceeds from an Asset Sale (including, without limitation, an Involuntary Transfer), the Company or the applicable Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent 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 liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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) $400.0 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”)::
(1) to repayrepay Indebtedness, redeem or repurchase:
(A) including Notes and permanent reductions of Obligations in respect under any Credit Agreement, but excluding repayment of Senior Indebtedness; or
(B) revolving 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; orunder any Credit Agreement;
(2) to make (a) an Investment in any one acquire all or more businesses; provided that such Investment in any business is in the form substantially all of the assets of, or any Capital Stock of, another Permitted Business of the Company, if, after giving effect to any such acquisition of Capital Stock and results in Stock, such Permitted Business is or becomes a Restricted Subsidiary;
(3) to make a capital expenditure for 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clausesSubsidiaries; or
(a4) (d) and this clause (e), either (i) to acquire other assets that are or will be not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business or (ii) that replace, in whole or in partCompany’s Permitted Business. Pending the final application of any Net Proceeds, the properties or assets that are Company may invest the subject of such Asset Sale; provided that Net Proceeds in the case of this clause (2), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 foregoingcash and Cash Equivalents.
(c) Pending the final application of the amount of any Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Any Net Proceeds from Asset Sales that are not applied or invested or applied as provided and within the time period set forth in paragraph (b) of this Section 4.10(b) 4.18 will be deemed to constitute “Excess Proceeds”. .” When the aggregate amount of Excess Proceeds exceeds $50.0 10.0 million, the Company will will, within five Business Days thereof, make an offer (the “Asset Sale Offer”) to all Holders and, at the option of the Company, to any and all holders of any other Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum aggregate principal amount of the Notes and such Pari Passu other pari passu Indebtedness that is in an amount equal to 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 Proceeds.
(d) The offer price, price in the case of the Notes, in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof (or accreted value thereof, 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 provided for by the terms of such Pari Passu Indebtedness), to, but excluding, interest to the date fixed for the closing of such offerpurchase, and will be payable in accordance with the procedures set forth in Section 3.09 cash.
(or, in respect e) If any Excess Proceeds remain after consummation of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). The Company will commence an Asset Sale Offer with respect to Offer, the Company may use those Excess Proceeds within 30 days after for any purpose not otherwise prohibited by this Indenture and the date Collateral Agreements; provided that pending any such application, 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 proceeds of the Asset Sale Proceeds Application Period with respect Sale, whether assets, property or cash, are subject to a Lien under the amount of all or a part of the available Applicable Proceeds in advance of being required to do so by this Indenture Collateral Agreements.
(the “Advance Offer”). To the extent that the aggregate principal amount (or accreted value, as applicablef) 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 and other pari passu Indebtedness surrendered in an tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, Trustee will select the Notes to be purchased in the manner described under Section 3.02 and the Company will shall select such Pari Passu other 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 basis, provided that applicable denominations 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 denominationare preserved. Upon completion of any such each 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) at zero. The Company will not, and neither Parent nor the Company may use will permit any remaining Excess Proceeds for Restricted Subsidiary to, enter into or suffer to exist any purpose not otherwise prohibited under this Indenture. An agreement 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 or Advance Offer may be made at 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) Offer. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws or and regulations are applicable in connection with the each 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 the Asset Sale provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in under the Asset Sale provisions of this Indenture by virtue thereofof such compliance.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Indenture (Vantage Drilling CO)
Asset Sales. (a) The the Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1) the Company or such the Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such the Asset Sale) Sale at least equal to the fair market value Fair Market Value (measured at as determined by the time Company’s Board of contractually agreeing Directors and evidenced by a resolution of the Board of Directors set forth in an officers’ certificate delivered to such the Trustee as to 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
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration for such received in the Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), received Sale by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that , 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 or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(A) any liabilities (liabilities, as shown on the Company’s or any Restricted Subsidiary’s its most recent 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 such Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, Guarantee) that are (i) assumed by the transferee of any such assets (or pursuant to 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 customary novation agreement that releases the Company or a such Restricted Subsidiary)Subsidiary from further liability;
(B) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are promptly, subject to ordinary settlement periods, converted or monetized by the Company or a such Restricted Subsidiary into cash or Cash Equivalentscash, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash received in that conversion or Cash Equivalents received) within 180 days following the closing of such Asset Sale;monetization; and
(C) any Designated Non-Cash Consideration received by the Company Capital Stock 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) $400.0 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 assets of the kind referred to in clause (2) or (4) of Section 4.10(b)(2); and
(F) with respect to any Asset Sale of Oil and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof4.12(b).
(b) Within 365 360 days after the receipt of any Net Proceeds of any from an Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or a the applicable Restricted Subsidiary, as the case may be, may apply those Net Proceeds, at its option, may apply an amount equal to such Net Proceeds (any one or more of the “Applicable Proceeds”):following:
(1) to repay, redeem or repurchase:
(A) repay secured Indebtedness and other secured 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 and its Restricted Subsidiary; orSubsidiaries;
(2) to make (a) an Investment in acquire all or substantially all of the assets of, or any one Capital Stock of, any Person or more businesses; provided that such Investment in any business is division conducting a Permitted Business, if, in the form case of the any such acquisition of Capital Stock and results in the Company or any Restricted Subsidiary owning an amount of the Capital Stock of after giving effect thereto, such business such that it constitutes or continues to constitute Person will be a Restricted Subsidiary, (b) capital expenditures, (c) other expenditures made with respect to Oil and Gas Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company (or enter into a binding commitment for any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (esuch acquisition), either (i) that are or will be used or useful in the Oil and Gas 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), a such binding commitment will shall be treated as a permitted application of the Applicable Net Proceeds from the date of such commitment so long 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 expenditure; 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 extent that the Asset Sale consists, directly or indirectly, of Domestic Assets, in order to qualify under any of the foregoing clauses (1) through (4) of this Section 4.12(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) which will become a Domestic Subsidiary at the time it becomes a Restricted Subsidiary pursuant thereto, make domestic capital expenditures or repay Indebtedness that is an obligation of the Company or a Restricted Subsidiary enters into such commitment with the good faith expectation that such Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 foregoingGuarantor.
(c) Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantNet Proceeds, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, revolving credit borrowings or otherwise use such Applicable invest the Net Proceeds in any manner that is not prohibited by the this Supplemental Indenture.
(d) The amount equal to the Applicable . Any Net Proceeds from Asset Sales that are not applied or invested or applied as provided and within the time period set forth in Section 4.10(b4.12(b) will be deemed to 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 $50.0 25.0 million, the Company will make an offer Asset Sale Offer to all Holders and, at the option of the Company, to any Notes and all holders of any Indebtedness that is pari passu with the Notes (“other Pari Passu Indebtedness” and such offer, Indebtedness in respect of which an “Asset Sale Offer”), offer to purchase is also required to purchase the maximum aggregate principal amount of the Notes and such other Pari Passu Indebtedness that is in an amount equal to 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 Proceeds. The offer price, price in the case of the Notes, in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof (or accreted value thereof, 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 provided for by the terms of such Pari Passu Indebtedness), to, but excluding, interest to the date fixed for the closing of such offerpurchase, and will be payable in accordance with the procedures set forth in Section 3.09 (or, in respect cash. If any Excess Proceeds remain after consummation of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). The Company will commence an Asset Sale 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 those Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in for any manner purpose not otherwise prohibited by this Supplemental Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the and other Pari Passu Indebtedness surrendered in an tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, Trustee will select the Notes to be purchased in the manner described under Section 3.02 and the Company will select such other 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 denominationbasis. Upon completion of any such each 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 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)zero.
(e) [Reserved].
(fd) The Company will shall comply with the requirements provisions of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations those provisions are applicable in connection with the each repurchase of the Notes pursuant to a Change of Control Offer or an Asset Sale Offer or Advance 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 Supplemental Indenture, the Company will shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in under the Change of Control or Asset Sale provisions of this Supplemental Indenture by virtue thereofof such conflict.
(ge) The Company’s obligation Notwithstanding the provisions described in Sections 4.12(a), (b), (c) and (d) (other than the proviso to make Section 4.12(b)), the Company and its Restricted Subsidiaries may consummate an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified Asset Sale without complying with the written consent such provisions if (i) at least 80% of the Holders consideration for such Asset Sale is in the form of assets used or useful in a majority in principal amount of the then outstanding NotesPermitted Business and (ii) such Asset Sale is for at least Fair Market Value.
Appears in 1 contract
Sources: First Supplemental Indenture (Westlake Chemical Corp)
Asset Sales. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, consummate cause, make or suffer to exist an Asset Sale, unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at as determined in good faith by the time of contractually agreeing to such Asset SaleCompany) 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), therefor received by the Company or a such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):amount of:
(A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent consolidated balance sheet of the Company 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 Companyfootnotes thereto) of the Company or any such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (or a third party in connection with such transferon behalf of the transferee) or (ii) otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to and for which the Company or a such Restricted Subsidiary);Subsidiary has been validly released by all creditors,
(B) any securities, notes or other obligations or assets received by the Company or a such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;, and
(C) any Designated Non-Cash Noncash Consideration received by the Company or a such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Noncash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of (ix) $400.0 300.0 million and (iiy) 5.03.0% of Adjusted Consolidated Net Tangible Total Assets of the Company at the time of the receipt of such Designated Non-Cash Noncash Consideration, with the fair market value of each item of Designated Non-Cash Noncash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and without giving effect to subsequent changes in value;
(D) Indebtedness of any Restricted Subsidiary that ceases , shall be deemed to be a Restricted Subsidiary as a result cash for purposes of such Asset Sale (this provision and for no 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof)purpose.
(b) Within 365 450 days after any of the Company’s or any Restricted Subsidiary’s receipt of any the Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or a such Restricted SubsidiarySubsidiary may, at its option, may apply an amount equal to such the Net Proceeds (the “Applicable Proceeds”):from such Asset Sale:
(1) to repay, redeem or repurchase:
permanently reduce (Aa) Obligations in respect of under any Senior Indebtedness; or
(B) Obligations in respect of Indebtedness of a Restricted Subsidiary that is not a Guarantorthe Company, the Issuer or any Guarantor (other than Obligations owed to the Company or a Restricted Subsidiary) and, in the case of Obligations under revolving credit facilities or other similar Indebtedness, to correspondingly permanently reduce commitments with respect thereto; provided that if the Company, the Issuer or any such Guarantor shall so reduce Obligations under any Senior Indebtedness that is not secured by a Lien permitted by this Indenture, the Company, the Issuer or such Guarantor shall, equally and ratably, reduce Obligations under the Notes by, at its option, (i) redeeming Notes, (ii) making an offer (in accordance with the procedures set forth under Section 4.10(c) hereof) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued and unpaid interest, if any, on the principal amount of Notes to be repurchased or (iii) purchasing Notes through open market purchases (to the extent such purchases are at a price equal to or higher than 100% of the principal amount thereof) in a manner that complies with this Indenture and applicable securities law or (b) Indebtedness of a Restricted Subsidiary that is not the Issuer or a Guarantor other than Indebtedness owed to the Company or another Restricted Subsidiary; or
(2) to make (aA) an Investment in any one or more 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, (bB) an investment in properties, (C) capital expenditures, expenditures and (c) other expenditures made with respect to Oil and Gas Properties, (dD) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securitiesthat in each of (A), in the case of clauses
(a) B), (dC) and this clause (eD), either (i) that are or will be used or useful in the Oil business of the Company and Gas Business in Restricted Subsidiaries or (ii) that replacereplace the businesses, in whole or in part, the properties or and assets that are the subject of such Asset Sale; provided .
(c) Any Net Proceeds from the Asset Sale that are not invested or applied in the case of this clause (2), a binding commitment will be treated as a permitted application of the Applicable Proceeds accordance with Section 4.10(b) within 450 days from the date of the receipt of such commitment so long as Net Proceeds shall be deemed to constitute “Excess Proceeds”; provided that if during such 450-day period the Company or a Restricted Subsidiary enters into a definitive binding agreement committing it to apply such commitment Net Proceeds in accordance with the good faith expectation that requirements of clause (2) of the immediately preceding paragraph after such Applicable 450th day, such 450-day period shall be extended with respect to the amount of Net Proceeds will so committed until such Net Proceeds are required to be applied to satisfy in accordance with such commitment within agreement (but such extension shall in no event be for a period longer than 180 days of such commitment days) (or, if laterearlier, 365 days after the receipt date of termination of such Applicable Proceedsagreement); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 100.0 million, the Company will Issuer shall make an offer to all Holders and, at if required by the option terms of any Senior Indebtedness of the CompanyCompany or any Restricted Subsidiary, to any the holders of any such Senior Indebtedness that is pari passu (other than with the Notes respect to Hedging Obligations) (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Senior Indebtedness that that, in the case of the Notes, is in an amount equal to at least $2,000, a minimum of €100,000 or an integral multiple of $€1,000 in excess of $2,000, thereof and that may be purchased out of the Excess Proceeds at an offer price, in the case of the Notes, price in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, 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 provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to 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)this Indenture. The Company will Issuer shall commence an Asset Sale Offer with respect to Excess Proceeds within 30 days ten Business Days after the date that the amount of Excess Proceeds exceeds exceed $50.0 100.0 million by mailing or electronically delivering the notice required pursuant to Section 3.09the terms of this Indenture, with a copy to the Trustee, or otherwise in accordance with Applicable Procedures. The Company Issuer may satisfy the foregoing obligation obligations with respect to any Applicable Net Proceeds from an Asset Sale by making an offer to purchase Notes Asset Sale Offer with respect to the amount of all or part of the available Applicable such Net Proceeds (the “Advance Portion”) prior to the expiration of the Asset Sale Proceeds Application Period relevant 450 days or with respect to the amount Excess Proceeds of all $100.0 million or a part of the available Applicable Proceeds in advance of being required to do so by this Indenture (the “Advance Offer”)less. To the extent that the aggregate principal amount (or accreted value, as applicable) of Notes and such Pari Passu Senior 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)Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Proceeds (or for general corporate purposes, subject to the other covenants contained 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 or the Pari Passu Senior Indebtedness surrendered in an Asset Sale Offer by such holders thereof exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, will Issuer shall select or cause to be selected the Notes to be purchased in the manner described under Section 3.02 and the Company will select such Pari Passu Senior 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 Senior Indebtedness tendered with adjustments as necessary so that no Notes or Pari Passu Indebtedness will be repurchased in part in an unauthorized denominationtendered. 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 related to such Asset Sale Offer or Advance Offer will shall be reset at zero. Pending the final application of any Net Proceeds pursuant to zero (regardless of whether there are any remaining Excess Proceeds (or Advance Portion) upon such completion) and this Section 4.10, the Company or the applicable Restricted Subsidiary may use apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any remaining Excess Proceeds for any purpose manner not otherwise prohibited under by this Indenture. An Asset Sale Offer or Advance Offer may be made at 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 Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer or Advance Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company will Issuer shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Indenture (Aramark)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiary toSubsidiaries to cause, consummate an make or suffer to exist any Asset Sale, unless:
(1i) no Default exists or is continuing immediately prior to and after giving effect to such Asset Sale;
(ii) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at evidenced for purposes of this Section 4.10 by a resolution of the time Board of contractually agreeing Directors set forth in an Officer's Certificate delivered to such Asset Salethe Trustee) of the assets sold or otherwise disposed of; and
(2iii) except in the case of a Permitted Asset Swap, at least 7580% of the consideration for such Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), therefor received by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or (w) Cash Equivalents, (x) Replacement Assets, (y) publicly traded Equity Interests of a Person who is, directly or indirectly, engaged primarily in one or more Cable Businesses; provided provided, however, that each the Company or such Restricted Subsidiary shall Monetize such Equity Interests by sale to one or more Persons (other than to the Company or a Subsidiary thereof) at a price not less than the fair market value thereof within 180 days of the following will be deemed to be cash consummation of such Asset Sale, or Cash Equivalents for purposes (z) any combination of this Section 4.10(a)(2):
the foregoing clauses (Aw) through (y); provided, however, that the amount of (x) any liabilities (as shown on the Company’s 's or any such Restricted Subsidiary’s 's most recent 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 Companythereto) of the Company or any Restricted Subsidiary, Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, ) that are (i) assumed by the transferee of any such assets and (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 the Company or a Restricted Subsidiary);
(By) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are within five Business Days converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalentscash, or by their terms are required shall be deemed 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;
(C) 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 conversion) for purposes of this clause (C) that is at that time outstanding, not to exceed the greater of (i) $400.0 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereofiii).
(b) Within 365 360 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company (or a the Restricted Subsidiary, at its option, as the case may apply an amount equal to such be) shall cause the Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or repurchasefrom such Asset Sale:
(Ai) Obligations in respect of Senior Indebtedness; or
(B) Obligations in respect of to be used to permanently reduce Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Obligations owed to the Company or a Restricted Subsidiary; or
(2ii) to make (a) an Investment be invested or reinvested in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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) Replacement Assets. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantsuch Net Proceeds, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, revolving credit borrowings or otherwise use invest such Applicable Net Proceeds in any manner that is not prohibited by this Indenture or the Indenture.
(d) The amount equal to indentures for the Applicable Other Qualified Notes. Any Net Proceeds from any Asset Sales Sale that are not invested used or applied reinvested as provided and within in the time period set forth in Section 4.10(b) will be deemed to preceding sentence constitute “Excess Proceeds”. "EXCESS PROCEEDS." When the aggregate amount of Excess Proceeds exceeds $50.0 15 million, the Company will shall make an offer (an "ASSET SALE OFFER") to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), Other Qualified Notes to purchase the maximum aggregate principal amount of Notes and Other Qualified Notes (determined on a pro rata basis according to the accreted value or principal amount, as the case may be, of the Notes and such Pari Passu Indebtedness that is the Other Qualified Notes and in an amount equal to at least $2,000, or an integral multiple of $1,000 in excess of $2,000, accordance with Section 3.09(g)(i)) that may be purchased out of the Excess Proceeds (x) with respect to the Other Qualified Notes, based on the terms set forth in the indenture related to each issue of the Other Qualified Notes and (y) with respect to the Notes, at an offer price, in the case of the Notes, price in cash in an amount equal to 100% of the outstanding principal amount thereof (or accreted value thereof, 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 provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to 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). The Company will commence an Asset Sale 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”)hereof. To the extent that the aggregate principal amount (or accreted value, as applicable) the case may be, of Notes and such Pari Passu Indebtedness Other Qualified Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds (Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount or in accreted value, as the case may be, of an Advance OfferNotes and Other Qualified Notes surrendered by holders thereof exceeds the amount of Excess Proceeds, then such remaining Excess Proceeds shall be allocated pro rata according to accreted value or principal amount, as the case may be, to the Notes and each issue of the Other Qualified Notes and in accordance with Section 3.09(g)(ii), and the Trustee shall select the Notes to be purchased from the amount allocated to the Notes on the basis set forth in Section 3.09(e) hereof. Upon completion of such offers to purchase each of the Notes and the Other Qualified Notes, the Advance Portion)amount of Excess Proceeds will be reset at zero.
(c) Notwithstanding the provisions of Sections 4.10(a) and (b): the Company and its Subsidiaries may:
(i) sell, lease, transfer, convey or otherwise dispose of assets or property acquired after October 14, 1993, by the Company or any Subsidiary in a sale-and-leaseback transaction so long as the proceeds of such sale are applied within five Business Days to permanently reduce Indebtedness of a Restricted Subsidiary or if there is no such Indebtedness or such proceeds exceed the amount of such Indebtedness then such proceeds or excess proceeds are reinvested in a Replacement Assets within 360 days after such sale, lease, transfer, conveyance or disposition;
(ii) (x) swap or exchange assets or property with a Cable Controlled Subsidiary or (y) issue, sell, lease, transfer, convey or otherwise dispose of equity securities of any of the Company's Subsidiaries to a Cable Controlled Subsidiary, in each of cases (x) and (y) so long as (A) the ratio of Indebtedness to Annualized Pro Forma EBITDA of the Company after such transaction is equal to or less than the ratio of Indebtedness to Annualized Pro Forma EBITDA of the Company immediately preceding such transaction; provided, however, that if the ratio of Indebtedness to Annualized Pro Forma EBITDA of the Company immediately preceding such transaction is 6:1 or less, then the ratio of Indebtedness to Annualized Pro Forma EBITDA of the Company may be 0.5 greater than such ratio immediately preceding such transaction and (B) either (I) the assets so contributed consist solely of a license to operate a Cable Business and the Net Households covered by all of the licenses to operate cable and telephone systems held by the Company and its Restricted Subsidiaries may use any remaining Excess Proceeds immediately after and giving effect to such transaction equals or exceeds the number of Net Households covered by all of the licenses to operate cable and telephone systems held by the Company and its Restricted Subsidiaries immediately prior to such transaction or (II) the assets so contributed consist solely of Cable Assets and the value of the Capital Stock received, immediately after and giving effect to such transaction, as determined by an investment banking firm of recognized standing with knowledge of the Cable Business, equals or exceeds the value of Cable Assets exchanged for such Capital Stock; or
(iii) issue, sell, lease, transfer, convey or otherwise dispose of Equity Interests (other than Disqualified Stock) of the Company (or in the case of an Advance Offer, the Advance Portionany Capital Stock Sale Proceeds therefrom) in to any manner not prohibited by this Indenture. If the aggregate principal amount Person (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 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 consentsincluding Non-Restricted Subsidiaries).
(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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Indenture (NTL Communications Corp)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, consummate cause, make or suffer to exist an Asset Sale, unless:
unless (1x) the Company Company, or such its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at as determined in good faith by the time of contractually agreeing to such Asset SaleCompany) of the assets sold or otherwise disposed of; and
of and (2y) 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), therefor received by the Company Company, or a such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that each the amount of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s or any such Restricted Subsidiary’s most recent 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 Companythereto) of the Company or any Restricted Subsidiary, Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes), that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary);
assets, (B) any securities, notes or other obligations or assets received by the Company or a such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
, (C) any Designated Non-Cash Noncash Consideration received by the Company or a any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Noncash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of of: (ix) $400.0 50.0 million and or (iiy) 5.07.5% of Adjusted Consolidated Net Tangible Total Assets of the Company at the time of the receipt of such Designated Non-Cash Consideration, Noncash Consideration (with the fair market value of each item of Designated Non-Cash Noncash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and without giving effect to subsequent changes in value;
); and (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 stock 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 assets of the kind referred to in Section 4.10(b)(2); and
clauses (Fii) with respect to any Asset Sale or (iii) of Oil and Gas Properties disposed the following paragraph of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed this covenant shall be deemed to be assumed by the transferee (or an Affiliate thereof)Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 365 days after the Company’s or any Restricted Subsidiary’s receipt of any the Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or a such Restricted SubsidiarySubsidiary may apply the Net Proceeds from such Asset Sale, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1i) to repay, redeem permanently reduce Obligations under the Credit Facility (or repurchase:
(A) Obligations in respect of Senior Indebtedness; or
(B) Obligations in respect of other Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Obligations owed to the Company secured by a Lien permitted by clause (f) of the definition of Permitted Liens) (and to correspondingly reduce commitments with respect thereto) or a Restricted Subsidiary; other Pari Passu Indebtedness (provided that if the Company shall so reduce Obligations under Pari Passu Indebtedness, it will equally and ratably reduce Obligations under the Notes if the Notes are then prepayable without premium or
, if the Notes may not be then prepaid without premium, the Company shall make an offer (2in accordance with the procedures set forth below for an Asset Sale Offer) to make all Holders to purchase at 100% of the principal amount thereof the amount of Notes that would otherwise be prepaid), (aii) to an Investment investment in any one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Company , capital expenditures 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assetsassets in each case, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas a Similar Business and/or (iii) to make an investment in properties or (ii) assets that replace, in whole or in part, replace the properties or and assets that are the subject of such Asset Sale; provided that in the case of this clause (2), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenantsuch Net Proceeds, the Company and its or such Restricted Subsidiaries Subsidiary may temporarily reduce IndebtednessIndebtedness under a revolving credit facility, if any, or otherwise use invest such Applicable Net Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Cash Equivalents or Investment Grade Securities. Any Net Proceeds from the Asset Sales Sale that are not invested or applied as provided and within the time period set forth in Section 4.10(b) the first sentence of this paragraph will be deemed to constitute “Excess Proceeds”. .” When the aggregate amount of Excess Proceeds exceeds $50.0 25.0 million, the Company will shall make an offer to all Holders and, at the option of the Company, to any Notes and all holders of any Pari Passu Indebtedness that is pari passu containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the Notes proceeds of sales of assets (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), ) to purchase the maximum aggregate principal amount of the Notes Notes, that is an integral multiple of $1,000, provided that no notes of $2,000 or less shall be redeemed in part, and such Pari Passu Indebtedness that is in an amount equal to 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, price in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other priceinterest and Liquidated Damages, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to the date fixed for the closing of such offer, in accordance with offer (the procedures set forth in Section 3.09 (or, in respect of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof“Offered Price”). The Company will shall commence an Asset Sale Offer with respect to Excess Proceeds within 30 days 20 Business Days after the date that on which the aggregate amount of Excess Proceeds exceeds $50.0 25.0 million by mailing or electronically delivering giving to each Holder of the notice required pursuant to Section 3.09Notes, with a copy to the Trustee, in the manner provided in Section 106 a notice stating:
(i) that the Holder has the right to require the Company to repurchase such Holder’s Notes at the Offered Price, subject to proration in the event the Excess Proceeds are less than the aggregate Offered Price of all Notes tendered;
(ii) the date of purchase of Notes pursuant to the Asset Sale Offer (the “Asset Sale Purchase Date”), which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed;
(iii) that the Offered Price will be paid to Holders electing to have Notes purchased on the Asset Sale Purchase Date; provided that a Holder must surrender its Note to the Paying Agent at the address specified in the notice prior to the close of business at least five Business Days prior to the Asset Sale Purchase Date;
(iv) any Note not tendered will continue to accrue interest pursuant to its terms;
(v) that unless the Company defaults in the payment of the Offered Price, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on and after the Asset Sale Purchase Date;
(vi) that Holders will be entitled to withdraw their tendered Notes and their election to require the Company to purchase such Notes; provided that the Company receives, not later than the close of business on the third Business Day preceding the Asset Sale Purchase Date, a telegram, telex, facsimile transmission or otherwise letter setting forth the name of the Holder, the principal amount of the Notes tendered for purchase, and a statement that such Holder is withdrawing its election to have such Notes purchased;
(vii) that the Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess thereof; and
(viii) the instructions a Holder must follow in order to have his Notes purchased 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”)Section 1017. To the extent that the aggregate principal amount (or accreted value, as applicable) of Notes and such other 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)Proceeds, 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 Indenturefor general corporate purposes. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the and other Pari Passu Indebtedness surrendered in an tendered into such Asset Sale Offer offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, such Excess Proceeds shall be allocated pro rata (or in based on the case of an Advance Offeraggregate principal amount tendered) among the Notes and such Pari Passu Indebtedness, and the Advance Portion), the Trustee, in accordance with the Applicable Procedures, will Trustee shall 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 in 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 manner described in part in an unauthorized denominationSection 1104. 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 shall 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 Indentureat zero. An Asset Sale Offer or Advance Offer may be made at 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 shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or and regulations are applicable in connection with 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 the provisions of this IndentureSection 1017, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations described in under this Indenture by virtue thereof.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Asset Sales. (a) The Company Borrower will not, and will not permit any of its Restricted Subsidiary toSubsidiaries to Dispose of any asset, consummate an Asset Saleincluding any Equity Interest owned by it, unlessexcept:
(1a) (i) Dispositions of inventory, used, worn-out, obsolete or surplus equipment, or Cash and Cash Equivalents, in each case in the ordinary course of business or (ii) the Company abandonment or such Restricted Subsidiary, as the case may be, receives consideration (including by way other Disposition of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwiseIntellectual Property that is, in connection with such Asset Salethe reasonable judgment of the Borrower, no longer economically practical or commercially reasonable to maintain or useful in any material respect in the conduct of the business of the Borrower and its Restricted Subsidiaries, taken as a whole, in the ordinary course of business;
(b) at least equal Dispositions 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 Borrower or a Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent 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 liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (sales, transfers 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 the Company or a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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) $400.0 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or repurchase:
(A) Obligations in respect of Senior Indebtedness; or
(B) Obligations in respect of Indebtedness of dispositions involving a Restricted Subsidiary that is not a GuarantorLoan Party shall be made in compliance with Section 6.09;
(c) other Dispositions of assets for fair market value, provided that the Borrower or any of its Restricted Subsidiaries shall receive not less than 75% of total consideration expected to be received for such sale, transfer or other than Obligations owed disposition in the form of Cash and Cash Equivalents (in each case, free and clear of all Liens at the time received); provided that, the value of (i) retained licenses, licenses back to the Company Borrower or its Restricted Subsidiaries (as a licensee) and covenants not-to-▇▇▇ with respect to software or Intellectual Property that are incidental to such sale, transfer or other Disposition and received in the ordinary course for such transactions and (ii) the surrender, waiver, settlement, compromise or release of any claim against the Borrower or any of its Restricted Subsidiary; or
(2) to make (a) an Investment Subsidiaries in any one or more businesses; provided that such Investment connection therewith shall be excluded in any business determining whether 75% of the consideration received is in the form of Cash and Cash Equivalents; provided that Designated Non-Cash Consideration, together with Designated Non-Cash Consideration deemed cash pursuant to the acquisition of Capital Stock last proviso to Section 6.05, in an amount up to $2,500,000 for any individual Disposition and results $5,000,000 in the Company aggregate for all Dispositions during the term of this Agreement shall be deemed cash for these purposes; provided further that this clause (c) shall not permit Dispositions of the Equity Interests of any Subsidiary other than (i) in connection with the sale of substantially all Equity Interests of such Subsidiary or (ii) in connection with third-party investments in or the sale of Equity Interests of any Unrestricted Subsidiary.
(d) (i) Leases, subleases, licenses or sublicenses of property (excluding Sale and Leaseback Transactions) and termination thereof by the Borrower or any Restricted Subsidiary owning an amount in the ordinary course of business or that do not materially impair the operation of the Capital Stock Borrower’s or its Restricted Subsidiaries’ business, (ii) Leases and subleases of real property located at ▇▇▇▇▇▇▇ Business Park in Rochester, NY and (iii) sales of assets pursuant to Sale and Leaseback Transactions permitted by Section 6.06;
(e) mergers, consolidations, liquidations, amalgamations and dissolutions, in each case in compliance with Section 6.03(a);
(f) Dispositions of Accounts in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy, workout or similar proceedings;
(g) to the extent constituting a Disposition, the granting of Liens permitted as Permitted Encumbrances and the making of investments permitted by Section 6.04 or the making of a Restricted Payment permitted by Section 6.08;
(h) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such business Disposition are promptly applied to the purchase price of such replacement property;
(i) transfers of property or assets subject to casualty or condemnation;
(j) Dispositions set forth on Schedule 6.05;
(k) Dispositions of Investments in joint ventures (including non-wholly owned Unrestricted Subsidiaries) to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(l) the unwinding of any Hedging Agreement pursuant to its terms;
(m) Dispositions of Accounts that it constitutes are owned by Foreign Subsidiaries (i) for fair market value or continues (ii) subject to constitute a Restricted Subsidiary, customary factoring or receivables financing arrangements;
(bn) capital expenditures, (c) other expenditures made with respect to Oil and Gas Properties, (d) acquisitions by Dispositions of claims that the Company Borrower or any Restricted Subsidiary may maintain (i) in connection with the settlement of, or judgments in respect of properties (including fee and leasehold interests) such claims or (eii) acquisitions by to the Company relevant insurance provider in connection with the receipt of insurance proceeds related to any such claims; and
(o) Dispositions of Intellectual Property in the form of licenses of Intellectual Property to third parties, including exclusive licenses, cross licenses, and covenants not to ▇▇▇ or similar rights with respect to Intellectual Property granted (i) in the ordinary course of business, (ii) in connection with a settlement of litigation, or (iii) in connection with a divestiture of product, product line, business unit or division (either in its entirety or in a particular geographical region); provided that no granting of any Restricted Subsidiary exclusive licenses of other assets, Intellectual Property other than securitiestrademarks under clause (i) of this clause (o) shall be permitted to the extent such exclusive license (A) materially impairs, limits, or restricts the operation of the Borrower or its Restricted Subsidiaries’ businesses, or (B) in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas Business or (ii) that replacea license which constitutes, in whole or in part, a transfer of title of the properties licensed Intellectual Property, such license may be exclusive solely with respect to the use of the licensed Intellectual Property in discrete geographical areas or assets that are discrete product/services categories, in each case, in which the subject Borrower or any of such Asset Sale; provided that in its Subsidiaries do not have material operations relating to the case licensed Intellectual Property. Notwithstanding anything to the contrary herein, (i) all Dispositions permitted hereby shall be made for fair value (other than those permitted by clauses (a)(ii), (c), (d)(i), (d)(ii), (e), (g), (i), (k), (l), (n) and (o) of this clause Section 6.05) and (2ii) at least seventy-five percent (75%) consideration consisting of Cash and Cash Equivalents (other than those permitted by clauses (a)(ii), a binding commitment will be treated as a (b), (c) (to the extent otherwise permitted application therein), (d), (e), (f), (g), (h), (i), (j), (k), (n) and (o) of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceedsthis Section 6.05); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenantthat, the Company and value of (x) retained licenses, licenses back to the Borrower or its Restricted Subsidiaries may temporarily reduce Indebtedness, (as a licensee) and covenants not-to-▇▇▇ with respect to software or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales Intellectual Property that are not invested incidental to such sale, transfer or applied as other Disposition and received in the ordinary course for such transactions and (y) the surrender, waiver, settlement, compromise or release of any claim against the Borrower or any of its Restricted Subsidiaries in connection therewith shall be excluded in determining whether 75% of the consideration received is in the form of Cash and Cash Equivalents; provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, further that at the option of the CompanyBorrower, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 Disposition, Designated Non-Cash Consideration, together with Designated Non-Cash Consideration deemed cash pursuant to Section 6.05(c), in an Asset Sale by making an offer amount up 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 $5,000,000 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not shall be deemed to have breached its obligations described in this Indenture by virtue thereofcash for these purposes.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Credit Agreement (Eastman Kodak Co)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1) 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
(2) 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. 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 agreement that releases the Company or such Restricted Subsidiary from further liability;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are within 180 days after such Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(C) any stock or assets of the kind referred to in Section 4.10(b)(2) or (4) hereof; and
(D) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (D), not to exceed $5.0 million, with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(b) Within 360 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:
(a) to repay Indebtedness and other Obligations under the Senior Credit Facility and to correspondingly permanently reduce any revolving commitments with respect thereto and (b) in the case of an Asset Sale of the asset or property of a Foreign Restricted Subsidiary of the Company, to repay Indebtedness and other Obligations under the agreements governing Permitted Debt described in clause (16) of the definition thereof;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Person engaged in a Permitted Business, if, after giving effect to any such acquisition, the Permitted Business is or becomes a Restricted Subsidiary or a line of business of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; and
(5) any combination of the foregoing; provided that in the case of clauses (2), (3) and (4) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as 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, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent 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 liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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) $400.0 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (orand, if later, 365 days after in the receipt of such Applicable Proceeds); provided, further, that if event any such commitment is later cancelled or terminated for any reason before such Applicable the Net Proceeds are appliedapplied in connection therewith, then such Applicable Net Proceeds will must be applied as set forth herein or if such cancellation or termination occurs later than the 360-day period referred to below, shall constitute Excess Proceeds. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds (as defined below); or
(3) in any combination of the foregoingmanner that is not prohibited by this Indenture.
(c) Pending the final application of the amount of any Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Any Net Proceeds from Asset Sales that are not applied or invested or applied as provided and within in the time period set forth in Section 4.10(b) second paragraph of this covenant will be deemed to constitute “Excess Proceeds”. When .” Within 15 days after the aggregate amount of Excess Proceeds exceeds $50.0 12.5 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), ) to all Holders of Notes to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to at least $2,000, or an integral multiple of $1,000 in excess of $2,000, that may be purchased out of with the Excess Proceeds at an Proceeds. The offer price, price in the case of the Notes, in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other priceinterest and Additional Interest, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to the date fixed for the closing of such offerpurchase, and will be payable in accordance with the procedures set forth in Section 3.09 (or, in respect cash. If any Excess Proceeds remain after consummation of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). The Company will commence an Asset Sale 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 those Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in for any manner purpose not otherwise 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 tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, Trustee 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 denominationbasis. Upon completion of any such each Asset Sale Offer, for purposes of this provision the amount of Excess Proceeds will be reset at zero.
(or d) 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 or, if less than the Offer Amount has been tendered, all Notes tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the case 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, premium, if any, and Additional 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. Upon the commencement of an Advance Asset Sale Offer, the Advance PortionCompany will send, by first class mail, a notice to the Trustee and each of the Holders, which contains 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 resulted in the Asset Sale Offer or Advance Offer will be reset is being made pursuant to zero (regardless of whether there are any remaining Excess Proceeds (or Advance Portion) upon such completion) this Section 4.10 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 the same length of 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).will remain open;
(e2) [Reserved].the Offer Amount, the purchase price and the Purchase Date;
(f3) The that any Note not tendered or accepted for payment will continue to accrue interest;
(4) that, unless the Company will comply with the requirements of Rule 14e-1 under the Exchange Act and defaults in making such payment, any other securities laws and regulations thereunder Note accepted for payment pursuant to the extent such laws or regulations are applicable in connection with Asset Sale Offer will cease to accrue interest after the repurchase of the Notes Purchase Date;
(5) 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; provided that no Notes in denominations of $2,000 or Advance Offer. To less may be redeemed or purchased in part;
(6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the extent that the provisions of any securities laws or regulations conflict Note, with the provisions form entitled “Option of this IndentureHolder 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;
(7) 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 telegram, 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 surrendered by the Holders exceeds the Offer Amount, the Trustee will select the Notes to be purchased on a pro rata basis; 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). 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 comply 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 applicable securities laws 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 regulations accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon written request from the Company, 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 deemed promptly mailed or delivered by the Company to have breached its obligations described the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date. Other than as specifically provided in this Indenture by virtue thereof.
(g) The Company’s obligation to make an offer to repurchase the Notes Section 4.10, any purchase pursuant to this Section 4.10 may shall be waived or modified with made pursuant to the written consent provisions of the Holders of a majority in principal amount of the then outstanding NotesSections 3.01 through 3.06 hereof.
Appears in 1 contract
Sources: Indenture (Castle a M & Co)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to: (i) sell, lease, convey or otherwise dispose of any assets (including by way of a sale-and-leaseback) other than sales or returns of inventory in the ordinary course of business (provided that the sale, lease, conveyance or other distribution of all or substantially all of the assets of the Company shall be governed by the provisions of Sections 4.15 and 5.01 hereof), or (ii) issue or sell equity securities of any of its Restricted Subsidiaries, in the case of either clause (i) or (ii) above, whether in a single transaction or a series of related transactions, (a) The Company will notthat have a fair market value in excess of $5.0 million or (b) for net proceeds in excess of $5.0 million (each of the foregoing, and will not permit any Restricted Subsidiary to, consummate an "Asset Sale"), unless:
unless (1x) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at evidenced by a resolution of the time Board of contractually agreeing Directors set forth in an Officers' Certificate delivered to such Asset Salethe Trustee) of the assets sold or otherwise disposed of; and
of and (2y) 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 therefor by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalentscash; provided that each of this 75% limitation shall not apply to any Asset Sale in which the following will be deemed to be after-tax cash or Cash Equivalents for purposes portion of this Section 4.10(a)(2):
the consideration received is equal or greater than what the net after-tax proceeds would have been had such Asset Sale complied with the 75% limitation; provided, however, that the amount of: (A) any liabilities (as shown on the Company’s 's or any such Restricted Subsidiary’s 's most recent balance sheet or in the notes thereto orthereto), 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 liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, guarantee thereof) that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary);
assets; (B) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are delivered within 20 days of the sale, subject to ordinary settlement periods, converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
); (C) any Designated Non-Cash Consideration received payment of secured debt secured by the Company or a Restricted Subsidiary assets sold 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) $400.0 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Indenture (Omni Med B Inc)
Asset Sales. Sell, transfer, lease or otherwise Dispose of any asset, including any capital stock, nor permit any of the Subsidiaries to issue any additional shares of its capital stock or other ownership interest in such Subsidiary, except:
(a) The Company will not(i) sales of Inventory in the ordinary course of business, or (ii) sales of used or surplus equipment in the ordinary course of business, or (iii) sales of Permitted Investments;
(b) Dispositions among the Loan Parties and will their Subsidiaries, provided that any such Dispositions involving a Subsidiary that is not permit a Loan Party shall be made in compliance with Section 7.09;
(c) sale-leaseback transactions involving any Restricted Subsidiary toLoan Party’s Real Estate as long as, consummate if the Administrative Agent so requests, the Administrative Agent shall have received an Asset Saleintercreditor agreement executed by the purchaser of such Real Estate on terms and conditions reasonably satisfactory to the Administrative Agent; and
(d) Dispositions, unless:
the proceeds of which (valued at the principal amount thereof in the case of proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other proceeds that do not constitute Cash and Cash Equivalents) (i) are less than $5,000,000 with respect to any single Dispositions or series of related Dispositions and (ii) when aggregated with the proceeds of all other Dispositions made within the same Fiscal Year, are less than $10,000,000; provided that (1) the Company or consideration received for 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, assets shall be in connection with such Asset Sale) an amount at least equal to the fair market value thereof (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, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent 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) board of directors of the Company or any Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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) $400.0 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 SubsidiaryLoan Parties), 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply no less than 85% of such consideration shall be paid in Cash and Cash Equivalents; provided that an amount equal to such the Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or repurchase:
(A) Obligations in respect of Senior Indebtedness; or
(B) Obligations in respect of Indebtedness of a Restricted Subsidiary that such Disposition received by any Loan Party is not a Guarantor, other than Obligations owed applied to the Company or a Restricted Subsidiary; or
(2) prepayment of Loans in the manner and to make (a) an Investment in any one or more businessesthe extent required by Section 2.05(f); 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, all Dispositions permitted hereby (other than Dispositions permitted under clause (b) capital expenditures, (c) other expenditures made with respect to Oil and Gas Properties, Dispositions under clause (d)) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 shall be made at 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)arm’s length and for fair value and solely for cash consideration.
(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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Credit Agreement (Wet Seal Inc)
Asset Sales. (a) The Company will not, and ▇▇d will not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1) the Company or such the Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such the Asset Sale) Sale at least equal to the fair market value (measured at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration for such received in the Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), received Sale by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that cash. For purposes of this provision, each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(Aa) any liabilities (liabilities, as shown on the Company’s or any Restricted Subsidiary’s 's most recent balance sheet or in the notes thereto or, if incurred or accrued subsequent to the date of such consolidated 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 Guarantor’s Guarantee of the Notes, Note Guarantee) that are (i) assumed by the transferee of any such assets (or pursuant to 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 customary agreement that releases the Company or a such Restricted Subsidiary)Subsidiary from further liability;
(Bb) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are contemporaneously, subject to ordinary settlement periods, converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalentscash, 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;received in that conversion; and
(Cc) any Designated Non-Cash Consideration received by the Company stock 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) $400.0 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 assets of the kind referred to in Section 4.10(b)(2); and
clause (F2) with respect to any Asset Sale or clause (4) of Oil and Gas Properties disposed the next paragraph of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) this covenant. Within 365 360 days after the receipt of any Net Proceeds of any from an Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company (or a the applicable Restricted Subsidiary, at its option, as the case may be) may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”)::
(1) to repayrepay the Notes, redeem or repurchase:
(A) Obligations in respect of Senior Indebtedness; or
(B) Obligations in respect of to repay the Notes and any other secured Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Obligations owed to the Company or on a Restricted Subsidiarypro rata basis; or
(2) to make (a) an Investment in acquire all or substantially all of the assets of, or any one or more businessesCapital Stock of, another Permitted Business; 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securitiesthat, in the case of clausesan acquisition of Capital Stock, the Permitted Business is or, after giving effect to such acquisition of such Capital Stock, becomes a Restricted Subsidiary of the Company;
(a3) to make a capital expenditure; or
(d4) and this clause (e), either (i) to acquire other assets that are or will be not classified as current assets under GAAP and that are used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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) Permitted Business. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantNet Proceeds, the Company and its Restricted Subsidiaries may temporarily reduce Indebtednessrevolving credit borrowings, if any, or otherwise use such Applicable invest the Net Proceeds in any manner that is not prohibited by the this Indenture.
(d) The amount equal to the Applicable . Any Net Proceeds from Asset Sales that are not applied or invested or applied as provided and within in the time period set forth in Section 4.10(b) second paragraph of this covenant will be deemed to constitute “"Excess Proceeds”. When ." Within 30 days of the date on which the aggregate amount of Excess Proceeds exceeds $50.0 10.0 million, the Company will make an offer Asset Sale Offer to all Holders and, at the option holders of the Company, to any Notes and all holders of other Indebtedness (including any Indebtedness Senior Discount Notes then outstanding) that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum aggregate principal amount of the Notes and such Pari Passu other pari passu Indebtedness that is in an amount equal to 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 Proceeds. The offer price, price in the case of the Notes, in cash in an amount any Asset Sale Offer will be equal to 100% of the aggregate principal amount thereof (or accreted value thereof, if less), of the Notes repurchased plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other priceinterest to the repurchase date plus accrued and unpaid Liquidated Damages, if any, as may to the repurchase date, and will be provided for by the terms payable in cash. If any Excess Proceeds remain after consummation 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). The Company will commence an Asset Sale 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 those Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in for any manner purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) purchase price of the Notes and/or the Pari Passu and other pari passu Indebtedness surrendered in an tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, trustee will select the Notes to be purchased in the manner described under Section 3.02 and the Company will select such Pari Passu other 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 basis 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 denominationpurchase price). Upon completion of any such each 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 Indentureat zero. An Asset Sale Offer or Advance Offer may be made at 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 such those laws or and regulations are applicable in connection with the each 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 the Asset Sale provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in under the Asset Sale provisions of this Indenture by virtue thereofof such compliance.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Indenture (Iwo Holdings Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such the Asset Sale) Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of (measured at provided that Fair Market Value will be determined on the time date 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 received in the Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), received Sale by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that cash. For purposes of this clause (2), each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(Aa) Cash Equivalents;
(b) any liabilities (liabilities, as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto or, if incurred or accrued subsequent to the date of such consolidated 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 Guarantor’s Guarantee of the Notes, ) that are (i) assumed by the transferee of any such assets (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 pursuant to an agreement that releases the Company or a such Restricted Subsidiary)Subsidiary from, or indemnifies the Company or such Restricted Subsidiary against, further liability;
(Bc) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted within 180 days by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(Cd) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this Section 4.12; and
(e) any Designated Non-Cash cash Consideration received by the Company or a 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 cash Consideration received pursuant to this clause (Ce) that is at that time outstanding, not to exceed the greater of (ix) $400.0 20.0 million and (iiy) 5.03.5% 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Total Assets. Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company (or a the applicable Restricted Subsidiary, at its option, as the case may be) may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”)::
(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, redeem Indebtedness and other Obligations (or repurchase:
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 (A1) Obligations of Section 4.09(b) and secured by a Permitted Lien described in clause (1) of the 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 Senior Indebtedness; or
(B) Obligations in respect assets of a Restricted Subsidiary that is not a Guarantor, Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Obligations owed to the Company or a Restricted Subsidiary; or;
(2) to make acquire (aincluding by way of a purchase of assets or stock, merger, consolidation or otherwise) an Investment in any one all or more businesses; provided that such Investment in any business is in the form substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock and results in Stock, the Company Permitted Business is or any Restricted Subsidiary owning an amount of the Capital Stock of such business such that it constitutes or continues to constitute becomes a Restricted Subsidiary, (b) capital expenditures, (c) other expenditures made with respect to Oil and Gas Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clausesCompany;
(a3) to make a capital expenditure; or
(d4) and this clause (e), either (i) to acquire other assets that are or will be not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business or (ii) that replace, in whole or in part, the properties or assets that are the subject of such Asset Salea Permitted Business; provided that in the case of this clause clauses (2), (3) and (4) above, a legally binding commitment will be treated as a permitted application of the Applicable Net Proceeds from the date of such commitment so long as the Company or a such other Restricted Subsidiary enters into applies such commitment with the good faith expectation that such Applicable Net Proceeds will be applied to satisfy such commitment within 180 days of entering into such commitment (or, if later, 365 days after the receipt of such Applicable Proceedsan “Acceptable Commitment”); provided, further, that if any such commitment Acceptable Commitment is later cancelled or terminated for any reason before more than 365 days after the receipt of such Applicable Proceeds are appliedNet Proceeds, then such Applicable Net Proceeds will constitute Excess Proceeds (as defined below); or
(3) any combination of the foregoing.
(c) Proceeds. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantNet Proceeds, the Company and its or a Restricted Subsidiaries Subsidiary may temporarily reduce Indebtedness, revolving credit borrowings (under the Credit Facilities or otherwise) or otherwise use such Applicable invest the Net Proceeds in any manner that is not otherwise prohibited by the this Indenture.
(d) The amount equal to the Applicable . Any Net Proceeds from Asset Sales that are not applied or invested or applied as provided and within in the time period set forth in second paragraph of this Section 4.10(b) 4.12 will be deemed to constitute “Excess Proceeds”. .” When the aggregate amount of Excess Proceeds exceeds $50.0 15.0 million, within 30 days thereof, the Company will make an offer Asset Sale Offer to all Holders and, at the option of the Company, to any Notes and all holders of any Pari Passu Indebtedness that is pari passu evidenced or governed by Pari Passu Payment Lien Documents containing provisions similar to those set forth in this Indenture with respect to mandatory prepayments and offers to purchase or redeem with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), proceeds of sales of assets to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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 Proceeds. The offer price, price in the case of the Notes, in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other priceinterest and Additional Interest, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to the date fixed for the closing of such offerpurchase, and will be payable in accordance with the procedures set forth in Section 3.09 (or, in respect cash. If any Excess Proceeds remain after consummation of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). The Company will commence an Asset Sale 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 those Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in for any manner purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the and such Pari Passu Indebtedness surrendered in an tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, Trustee will select the Notes to be purchased in the manner described under Section 3.02 and the Company (or the applicable agent for such Pari Passu Indebtedness) 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 denominationbasis. Upon completion of any such each 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 Indentureat zero. An Asset Sale Offer or Advance Offer may be made at 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 such those laws or and regulations are applicable in connection with the each 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 the Asset Sale provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in under the Asset Sale provisions of this Indenture by virtue thereofof such compliance.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Indenture (Xerium Technologies Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiary toSubsidiaries to cause, consummate an make or suffer to exist any Asset Sale, unless:
(1i) no Default exists or is continuing immediately prior to and after giving effect to such Asset Sale;
(ii) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at evidenced for purposes of this Section 4.10 by a resolution of the time Board of contractually agreeing Directors set forth in an Officer's Certificate delivered to such Asset Salethe Trustee) of the assets sold or otherwise disposed of; and
(2iii) except in the case of a Permitted Asset Swap, at least 7580% of the consideration for such Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), therefor received by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or (w) Cash Equivalents, (x) Replacement Assets, (y) publicly traded Equity Interests of a Person who is, directly or indirectly, engaged primarily in one or more Cable Businesses; provided provided, however, that each the Company or such Restricted Subsidiary shall Monetize such Equity Interests by sale to one or more Persons (other than to the Company or a Subsidiary thereof) at a price not less than the fair market value thereof within 180 days of the following will be deemed to be cash consummation of such Asset Sale, or Cash Equivalents for purposes (z) any combination of this Section 4.10(a)(2):
the foregoing clauses (w) through (y); provided, however, that the amount of (A) any liabilities (as shown on the Company’s 's or any such Restricted Subsidiary’s 's most recent 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 Companythereto) of the Company or any Restricted Subsidiary, Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, ) that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary);
and (B) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are within five Business Days converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalentscash, or by their terms are required shall be deemed 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;
(C) 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 conversion) for purposes of this clause (C) that is at that time outstanding, not to exceed the greater of (i) $400.0 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereofiii).
(b) Within 365 360 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company (or a the Restricted Subsidiary, at its option, as the case may apply an amount equal to such be) shall cause the Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or repurchasefrom such Asset Sale:
(Ai) Obligations in respect of Senior Indebtedness; or
(B) Obligations in respect of to be used to permanently reduce Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Obligations owed to the Company or a Restricted Subsidiary; or
(2ii) to make (a) an Investment be invested or reinvested in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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) Replacement Assets. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantsuch Net Proceeds, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, revolving credit borrowings or otherwise use invest such Applicable Net Proceeds in any manner that is not prohibited by this Indenture or the Indenture.
(d) The amount equal to indentures for the Applicable Other Qualified Notes. Any Net Proceeds from any Asset Sales Sale that are not invested used or applied reinvested as provided and within in the time period set forth in Section 4.10(b) will be deemed to preceding sentence constitute “Excess Proceeds”. "EXCESS PROCEEDS." When the aggregate amount of Excess Proceeds exceeds $50.0 15.0 million, the Company will shall make an offer (an "ASSET SALE Offer") to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), Other Qualified Notes to purchase the maximum aggregate principal amount of Notes and Other Qualified Notes (determined on a pro rata basis according to the accreted value or principal amount, as the case may be, of the Notes and such Pari Passu Indebtedness that is the Other Qualified Notes and in an amount equal to at least $2,000, or an integral multiple of $1,000 in excess of $2,000, accordance with Section 3.09(g)(i)) that may be purchased out of the Excess Proceeds (x) with respect to the Other Qualified Notes, based on the terms set forth in the indenture related to each issue of the Other Qualified Notes and (y) with respect to the Notes, at an offer price, in the case of the Notes, price in cash in an amount equal to 100100.0% of the outstanding principal amount thereof (or accreted value thereof, 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 provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to 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). The Company will commence an Asset Sale 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”)hereof. To the extent that the aggregate principal amount (or accreted value, as applicable) the case may be, of Notes and such Pari Passu Indebtedness Other Qualified Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds (Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount or in accreted value, as the case may be, of an Advance OfferNotes and Other Qualified Notes surrendered by holders thereof exceeds the amount of Excess Proceeds, then such remaining Excess Proceeds shall be allocated pro rata according to accreted value or principal amount, as the case may be, to the Notes and each issue of the Other Qualified Notes and in accordance with Section 3.09(g)(ii), and the Trustee shall select the Notes to be purchased from the amount allocated to the Notes on the basis set forth in Section 3.09(e) hereof. Upon completion of such offers to purchase each of the Notes and the Other Qualified Notes, the Advance Portion)amount of Excess Proceeds will be reset at zero.
(c) Notwithstanding the provisions of Sections 4.10(a) and (b): the Company and its Subsidiaries may:
(i) sell, lease, transfer, convey or otherwise dispose of assets or property acquired after October 14, 1993, by the Company or any Subsidiary in a sale-and-leaseback transaction so long as the proceeds of such sale are applied within five Business Days to permanently reduce Indebtedness of a Restricted Subsidiary or if there is no such Indebtedness or such proceeds exceed the amount of such Indebtedness then such proceeds or excess proceeds are reinvested in a Replacement Assets within 360 days after such sale, lease, transfer, conveyance or disposition;
(ii) (x) swap or exchange assets or property with a Cable Controlled Subsidiary or (y) issue, sell, lease, transfer, convey or otherwise dispose of equity securities of any of the Company's Subsidiaries to a Cable Controlled Subsidiary, in each of cases (x) and (y) so long as (A) the ratio of Indebtedness to Annualized Pro Forma EBITDA of the Company after such transaction is equal to or less than the ratio of Indebtedness to Annualized Pro Forma EBITDA of the Company immediately preceding such transaction; provided, however, that if the ratio of Indebtedness to Annualized Pro Forma EBITDA of the Company immediately preceding such transaction is 6:1 or less, then the ratio of Indebtedness to Annualized Pro Forma EBITDA of the Company may be 0.5 greater than such ratio immediately preceding such transaction and (B) either (I) the assets so contributed consist solely of a license to operate a Cable Business and the Net Households covered by all of the licenses to operate cable and telephone systems held by the Company and its Restricted Subsidiaries may use any remaining Excess Proceeds immediately after and giving effect to such transaction equals or exceeds the number of Net Households covered by all of the licenses to operate cable and telephone systems held by the Company and its Restricted Subsidiaries immediately prior to such transaction or (II) the assets so contributed consist solely of Cable Assets and the value of the Capital Stock received, immediately after and giving effect to such transaction, as determined by an investment banking firm of recognized standing with knowledge of the Cable Business, equals or exceeds the value of Cable Assets exchanged for such Capital Stock; or
(iii) issue, sell, lease, transfer, convey or otherwise dispose of Equity Interests (other than Disqualified Stock) of the Company (or in the case of an Advance Offer, the Advance Portionany Capital Stock Sale Proceeds therefrom) in to any manner not prohibited by this Indenture. If the aggregate principal amount Person (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 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 consentsincluding Non-Restricted Subsidiaries).
(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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Indenture (NTL Communications Corp)
Asset Sales. (a) The Company will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, consummate directly or indirectly an Asset Sale, unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) 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; provided, however, that the foregoing shall not apply to (x) any Asset Sale by Northern SC Paper Corporation or (y) Asset Sales consisting of the disposition, sale or exchange of capital stock held by the Company or any of its Subsidiaries in any person other than a Subsidiary if neither the Company nor any of its Subsidiaries has the right under contract or applicable law to prevent such disposition, sale or exchange (a “Mandatory Sale”); and
(2) except in the case of a Permitted Asset Swap, at least 7575.0% of the consideration for such Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), therefor received by the Company or a Restricted such Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided cash equivalents, provided, however, that each the foregoing shall not apply to (x) Asset Sales by Northern SC Paper Corporation, (y) Mandatory Sales and (z) the concurrent purchase and sale or exchange of assets substantially in the line of business conducted by the Company as of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s Closing Date or any Restricted Subsidiary’s most recent balance sheet business reasonably related or in the notes ancillary thereto or, if incurred or accrued subsequent to the date a combination 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 business assets and cash equivalents between the Company or any Restricted Subsidiaryof its Subsidiaries and another Person, other than liabilities provided that are by their terms subordinated in right the sum of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (or a third party cash and cash equivalents received in connection with such transfera transaction described in (x), (y) or (iiz) otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to shall 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;
(C) 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 considered Net Proceeds subject to this clause (C) that is at that time outstanding, not to exceed the greater of (i) $400.0 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof)10.5.
(b) Within 365 360 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or a Restricted such Subsidiary, at its option, may apply an amount equal or cause to such be applied the Net Proceeds (the “Applicable Proceeds”):from such Asset Sale:
(1) to repay, redeem or repurchase:
(A) Obligations in repay outstanding senior Indebtedness and permanently reduce the commitments with respect of Senior thereto without Permitted Refinancing 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; or
(2) to make (a) an Investment investment in any one or more similar 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 expendituresan acquisition of properties, (c) other expenditures made with respect to Oil and Gas Propertiescapital expenditures, or (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securitiesthat, in the case of clauses
(a) (d) and this clause (e)each case, either (i) that are or will be used or useful in the Oil and Gas Business Company’s business or (ii) that replacereplace the businesses, in whole or in part, the properties or and/or assets that are the subject of such Asset Sale; provided that in the case of this clause (2), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Any Net Proceeds from an Asset Sales Sale that are not invested or applied as provided and within the time period set forth in Section 4.10(b10.5(b) hereof will be deemed to constitute “Excess Proceeds”. .” When the aggregate amount of Excess Proceeds exceeds $50.0 10 million, the Company will shall make an offer to all Holders holders of the Notes and, at if required by the option of the Company, to any holders terms of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and ”), to the holders of such offer, Pari Passu Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, price in cash in an amount equal to 100100.0% of the principal amount thereof (or accreted value thereof, if lessthe “Asset Sale Amount”), plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other price, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to 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). d) The Company will commence an Asset Sale Offer with respect to Excess Proceeds within 30 days ten Business Days after the date that on which the aggregate amount of Excess Proceeds exceeds $50.0 10 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 Proceduresclause (e) below. The Company may satisfy the foregoing obligation obligations with respect to any Applicable Net Proceeds from an Asset Sale by making an offer to purchase Notes Asset Sale Offer with respect to the amount of all or part of the available Applicable such Net Proceeds (the “Advance Portion”) prior to the expiration of the Asset Sale Proceeds Application Period relevant 360-day period or with respect to Excess Proceeds of $10 million or less.
(e) Each notice of an Asset Sale Offer will be mailed first class, postage prepaid, to the amount of all or a part holders of the available Applicable Proceeds in advance Notes at such time. Each notice of being an Asset Sale Offer shall state, among other things, the purchase date, which must be no earlier than thirty (30) days nor later than sixty (60) days from the date the notice is mailed, other than as may be required to do so by this Indenture law (the “Advance OfferAsset Sale Offer Payment Date”). Upon receiving notice of an Asset Sale Offer, any holder of the Notes may elect to tender its Notes in whole or in part in integral multiples of $100,000 in exchange for cash. On the Asset Sale Offer Payment Date, the Company will, to the extent lawful: (i) accept for payment all Notes or portions thereof properly tendered pursuant to the Asset Sale Offer and (ii) make payment for all such Notes or portions thereof so tendered. If only a portion of a Note is purchased pursuant to an Asset Sale Offer, a new Note in a principal amount equal to the portion thereof not purchased will be issued in the name of the holder thereof upon cancellation of the original Note. Notes (or portions thereof) purchased pursuant to an Asset Sale Offer will be cancelled and cannot be reissued.
(f) To the extent that the aggregate principal amount (or accreted value, as applicable) of the 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)Proceeds, 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 Indenturefor general corporate purposes. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or or the Pari Passu Indebtedness surrendered in an Asset Sale Offer by such holders thereof exceeds the amount of the Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, will Company shall 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 (with adjustments as needed for selection of authorized minimum denominations) 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 denominationtendered. 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 shall 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in this Indenture by virtue thereofzero.
(g) The Company’s obligation to make an offer to repurchase Pending the Notes final application of any Net Proceeds pursuant to this Section 4.10 10.5, the holder of such Net Proceeds may be waived apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or modified with the written consent of the Holders of a majority otherwise invest such Net Proceeds in principal amount of the then outstanding Notesany manner not prohibited by this Agreement.
Appears in 1 contract
Asset Sales. (a) The Company will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, consummate directly or indirectly, engage in an Asset Sale, unless:
unless (1i) immediately before and after giving effect to such transaction, no Default or Event of Default exists, (ii) the Company (or such Restricted the Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
, (2iii) except if such Asset Sale involves Collateral it shall be in compliance with the case provisions of a Permitted Asset Swapthis Indenture and the Security Documents, (iv) at least 75% of the consideration for such Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), therefor received by the Company or a Restricted Subsidiary, as the case may be, such Subsidiary is in the form of cash or Cash Equivalents; provided that each the amount of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(Ax) any liabilities (as shown on the Company’s 's or any Restricted such Subsidiary’s 's most recent 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 Guarantor’s Guarantee of the Notes, ) that are (i) assumed by the transferee of any such assets (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 pursuant to an agreement that releases the Company or a Restricted Subsidiary);
such Subsidiary from further liability and (By) any securities, notes or other obligations or assets securities received by the Company or a Restricted any such Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are immediately converted by the Company or a Restricted such Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), shall be deemed to be cash or Cash Equivalents for purposes of this provision, and (v) within 180 days following the closing Company or such Subsidiary shall apply the Net Proceeds of such Asset Sale;
Sale within 360 days of receipt thereof, as follows: (CA) first, to the extent such Net Proceeds are received from an Asset Sale not involving the sale, transfer or disposition of Collateral ("Non- Collateral Proceeds"), to repay any Designated Non-Cash Consideration received Indebtedness secured by the Company or a Restricted Subsidiary assets involved in such Asset Sale having an aggregate fair market valueor otherwise required to be repaid with the proceeds thereof, 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) $400.0 million and (iiB) 5.0% of Adjusted Consolidated Net Tangible Assets of the Company at the time of the receipt of such Designated Non-Cash Considerationsecond, 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related Non-Collateral Proceeds remaining after application pursuant to the exploration, development, completion or production of such Oil preceding paragraph (A) and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any received from an Asset Sale to the extent such assets constitute Collateral (as may be extended pursuant to clause (2) below"Collateral Proceeds" and, together with such remaining Non-Collateral Proceeds, the “Asset Sale Proceeds Application Period”"Available Amount"), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will shall make an offer to all Holders and, at purchase (the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “"Asset Sale Offer”)") from all Holders of Notes, up to purchase the a maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to at least $2,000, or an integral (expressed as a multiple of $1,000 in excess 1,000) of $2,000, that may be purchased out of Notes equal to the Excess Proceeds Available Amount at an offer price, in the case of the Notes, in cash in an amount a purchase price equal to 100% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other priceinterest thereon, if any, to the date of purchase; provided, however, that the Company will not be required to apply pursuant to this paragraph (B) Net Proceeds received from any Asset Sale if, and only to the extent that, such Net Proceeds are applied to a Related Business Investment within 360 days of such Asset Sale and, if the Net Proceeds so invested were Collateral Proceeds, the property and assets constituting such Related Business Investment and any other non-cash consideration received as may be provided for a result of such Asset Sale are made subject to the Lien of this Indenture and the applicable Security Documents pursuant to the provisions of this Indenture and the applicable Security Documents; provided, further, that if at any time any non-cash consideration received by the terms Company or any Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such Pari Passu Indebtedness), to, but excluding, conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the date fixed for the closing of such offer, Net Proceeds thereof shall be applied in accordance with this Section 4.16; and provided, further, that the procedures set forth in Section 3.09 (or, in respect of such Pari Passu Indebtedness, Company may defer the agreement or instrument governing the terms thereof). The Company will commence an Asset Sale Offer with respect until there is an aggregate unutilized Available Amount equal to Excess Proceeds within 30 days after or in excess of $10 million resulting from one or more Asset Sales (at which time the date that entire unutilized Available Amount, and not just the amount in excess of Excess Proceeds exceeds $50.0 million by mailing or electronically delivering the notice 10 million, shall be applied as 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”paragraph). 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 not fully subscribed to by Holders of the Excess Proceeds (or in the case of an Advance Offer, the Advance Portion)Notes, the Company and its Restricted Subsidiaries or any applicable Subsidiary may use any remaining Excess Proceeds (or in obtain a release of the case unutilized portion of an Advance Offer, the Advance Portion) in any manner not prohibited by this Indenture. If Available Amount from the aggregate principal amount (or accreted value, as applicable) Lien 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, Security Documents 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 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)11.
(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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at as determined in good faith by the time of contractually agreeing to such Asset SaleCompany) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 7575.0% of the consideration for such Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), therefor received by the Company or a such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided provided, that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):amount of:
(A) any liabilities (as shown on the Company’s or any such Restricted Subsidiary’s most recent 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 Companyfootnotes thereto) of the Company or any such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 the Company or a its Restricted SubsidiarySubsidiaries) and, in the case of clause (i);, for which the Company and all of its Restricted Subsidiaries have been validly released by all applicable creditors in writing,
(B) any securities, notes or other obligations or assets received by the Company or a such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;,
(C) any Designated Non-Cash cash Consideration received by the Company or a such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of (i) $400.0 million and (ii) 5.010.0% of Adjusted Consolidated Net Tangible Total Assets of the Company at the time of the receipt of such Designated Non-Cash cash Consideration, with the fair market value of each item of Designated Non-Cash cash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and without giving effect to subsequent changes in value;, and
(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 its Restricted SubsidiarySubsidiaries), 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed shall be deemed to be assumed by the transferee (or an Affiliate thereof)Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 365 450 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or a such Restricted Subsidiary, at its option, may apply an amount equal to such the Net Proceeds (the “Applicable Proceeds”):from such Asset Sale,
(1) to repay, redeem or repurchasepermanently reduce:
(A) Obligations in under Indebtedness (other than Subordinated Indebtedness) that is secured by a Lien, which Lien is permitted by this Indenture, and to correspondingly reduce commitments with respect of Senior Indebtedness; orthereto;
(B) Obligations under other Indebtedness of the Company or a Guarantor (other than Subordinated Indebtedness) (and to correspondingly reduce commitments with respect thereto), provided, that the Issuers shall equally and ratably reduce Obligations under the Notes as provided under Section 3.07 hereof, through open-market purchases (to the extent such purchases are at or above 100.0% of the principal amount thereof) or by making an offer (in respect accordance with the procedures set forth under Section 4.10(c) hereof) to all Holders to purchase their Notes at 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; or
(C) Obligations under Indebtedness (including any Senior Credit Facilities and the Opco Notes) of a Restricted Subsidiary that is not a GuarantorGuarantor (including Opco), other than Obligations Indebtedness owed to the Company or a another Restricted Subsidiary; orprovided, that (i) an offer to purchase Indebtedness of a Restricted Subsidiary of the Company made in accordance with the terms of such Indebtedness will be deemed to have satisfied the obligation to repay or reduce Indebtedness of a Restricted Subsidiary to the extent of the amount of the offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds, the obligation to repay or reduce Indebtedness of a Restricted Subsidiary will be deemed satisfied to the extent of the declined Net Proceeds, so long as, in the case of both clauses (i) and (ii), an offer to purchase any Indebtedness of such Restricted Subsidiary incurred under the Term Loan Facility, the Senior Notes or the Senior Subordinated Notes (or incurred in respect of any Indebtedness permitted by the Indenture that extends, replaces, refunds, refinances, renews or defeases the Term Loan Facility, the Senior Notes or the Senior Subordinated Notes) has been made;
(2) to make (aA) an Investment in any one or more businesses; provided , provided, that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Company or any of its Restricted Subsidiary Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes or continues to constitute a Restricted Subsidiary, (bB) capital expenditures, expenditures or (c) other expenditures made with respect to Oil and Gas Properties, (dC) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other properties or other assets, other than securities, in the case of clauses
each of (a) A), (dB) and this clause (eC), either (i) that are or will be used or useful in a Similar Business; or
(3) to make an Investment in (A) any one or more businesses, provided, that such Investment in any business is in the Oil form of the acquisition of Capital Stock and Gas Business results in the Company or any of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (B) properties or (iiC) that replaceother assets that, in whole or in partthe case of each of (A), (B) and (C), replace the businesses, properties or and/or other assets that are the subject of such Asset Sale; provided that that, in the case of this clause clauses (2)) and (3) above, a binding commitment will shall be treated as a permitted application of the Applicable Net Proceeds from the date of such commitment so long as the Company or a such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Applicable Net Proceeds will shall be applied to satisfy such commitment within 180 days of such commitment (oran “Acceptable Commitment”) and, if laterin the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, 365 the Company or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days after the receipt of such Applicable Proceeds)cancellation or termination; provided, further, provided further that if any such commitment Second Commitment is later cancelled or terminated for any reason before such Applicable Net Proceeds are applied, then such Applicable Net Proceeds will shall constitute Excess Proceeds (as defined below); or
(3) any combination of the foregoingProceeds.
(c) Pending the final application of the amount of any Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Any Net Proceeds from the Asset Sales Sale that are not invested or applied as provided and within the time period set forth in Section 4.10(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes, as described in clause (b)(1) above, will be deemed to have been applied whether or not such offer is accepted) shall be deemed to constitute “Excess Proceeds”. .” When the aggregate amount of Excess Proceeds exceeds $50.0 100.0 million, the Company will Issuers shall make an offer to all Holders of the Notes and, at if required by the option of the Company, to any holders terms of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and ”), to the holders of such offer, Pari Passu Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to at least $2,000, or an integral multiple of $1,000 or, in excess the case any PIK Payment has been made, that is an integral multiple of $2,0001.00, that may be purchased out of the Excess Proceeds at an offer price, in the case of the Notes, price in cash in an amount equal to 100100.0% of the principal amount thereof (thereof, or 100.0% of the accreted value thereof, if less), plus accrued and unpaid interest, if any interest (or, in respect of such Pari Passu Indebtedness, such other lesser price, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to, but excluding, ) to 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)this Indenture. The Company will Issuers shall commence an Asset Sale Offer with respect to Excess Proceeds within 30 days ten Business Days after the date that the amount of Excess Proceeds exceeds exceed $50.0 100.0 million by mailing or electronically delivering the notice required pursuant to Section 3.09the terms of this Indenture, with a copy to the Trustee, Trustee or otherwise in accordance with Applicable Proceduresthe procedures of DTC. The Company Issuers may satisfy the foregoing obligation obligations with respect to any Applicable Net Proceeds from an Asset Sale by making an offer to purchase Notes Asset Sale Offer with respect to the amount of all or part of the available Applicable such Net Proceeds (the “Advance Portion”) prior to the expiration of the Asset Sale Proceeds Application Period relevant 450 days (or such longer period provided above) or with respect to the amount Excess Proceeds of all $100.0 million or a part of the available Applicable Proceeds in advance of being required to do so by this Indenture (the “Advance Offer”)less. 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 OfferProceeds, the Advance Portion), the Company and its Restricted Subsidiaries Issuers may use any remaining Excess Proceeds (or in the case of an Advance Offerfor general corporate purposes, the Advance Portion) in any manner not prohibited by subject to compliance with this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or and the Pari Passu Indebtedness surrendered in an Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, will Trustee shall 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 in accordance with Section 3.09 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 shall be reset to zero (regardless of whether there are any remaining Excess Proceeds (or Advance Portion) upon such completion). Notwithstanding the foregoing, the Issuers will not be required to apply in accordance with this covenant any Net Proceeds received in respect of any Asset Sale by any Restricted Subsidiary until such time as such entities are permitted in accordance with the terms of their Indebtedness to dividend or distribute an amount at least equal to such Net Proceeds to the Issuers, excluding for such purposes any such dividends or distributions that are to be applied to Cash Interest or that are intended for another purpose.
(d) and Pending the Company final application of any Net Proceeds pursuant to this Section 4.10, the holder of such Net Proceeds may use apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility, including under the Senior Credit Facilities, or otherwise invest such Net Proceeds in any remaining Excess Proceeds for any purpose manner not otherwise prohibited under by this Indenture. An Asset Sale Offer or Advance Offer may be made at 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 Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will Issuers shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Indenture (Michaels Companies, Inc.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, unless:
(i) the Black Hawk Casino is Operating;
(ii) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of;
(iii) at least 80% of the consideration received therefor by the Company or such Subsidiary is in the form of cash or Cash Equivalents; and
(iv) the assets subject to such Asset Sale do not constitute Collateral or, in the case of any such assets that do constitute Collateral, such sale is permitted by the applicable Collateral Documents or this Indenture. For purposes of this provision, each of the following will be deemed to be cash in the amount of:
(A) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability; and
(B) any securities or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are promptly (but in any event within 90 days) converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received). Within 270 days after the receipt of any Net Proceeds from an Asset Sale, the Company or such Restricted Subsidiary, as the case may be, may (1) apply such Net Proceeds to the making of a capital expenditure or the acquisition of long-term assets, in either case, which will be owned by the Company or such Restricted Subsidiary and be used by or useful to the Company or such Restricted Subsidiary in any line of business in which the Company or such Restricted Subsidiary is permitted to be engaged pursuant to Section 4.13 hereof or (2) contractually commit to apply such Net Proceeds to the payment of the costs of construction of real property improvements or the costs of capital expenditures which, in each case, will be Collateral and will be owned by the Company or such Restricted Subsidiary and be used by or useful to the Company or such Restricted Subsidiary in any line of business in which the Company or such Restricted Subsidiary is permitted to be engaged pursuant to Section 4.13 hereof; provided, that in the case of each of clause (1) and clause (2) 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 uses such Asset Sale) at least equal to the fair market value (measured replacement asset at the time of contractually agreeing to such Asset Sale) of same location as the assets sold or otherwise disposed of; and
(2) except in and grants to the case of a Permitted Asset SwapTrustee, at least 75% on behalf of the consideration for such Asset SaleHolders, together with all other Asset Sales since May 6, 2021 (a first priority perfected security interest on a cumulative basis), received by the Company or a Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent 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 liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such properties or assets (acquired or a third party in connection with such transfer) or (ii) otherwise cancelled or terminated in connection constructed with the transaction with such transferee (other than intercompany debt owed to the Company or a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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) $400.0 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any such Asset Sale (as may be extended pursuant to clause (2) below, on the “Asset Sale Proceeds Application Period”), terms set forth in this Indenture and the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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) Collateral Documents. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantsuch Net Proceeds, the Company and its or such Restricted Subsidiaries Subsidiary may temporarily reduce Indebtedness, or otherwise use invest such Applicable Net Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal Cash Equivalents which shall be pledged to the Applicable Trustee as security for the Notes. Any Net Proceeds from Asset Sales that do not constitute Collateral and that are not applied or invested or applied as provided and within in the time period set forth in Section 4.10(b) will preceding paragraph shall be deemed to constitute “"Excess Proceeds”. ." When the aggregate amount of Excess Proceeds exceeds $50.0 5.0 million, the Company will shall be required to make an offer (an "Asset Sale Offer") to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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 Proceeds, at an offer price, in the case of the Notes, price in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other priceInterest and Liquidated Damages, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to the date fixed for the closing of such offerpurchase, and shall be in accordance with the procedures provisions set forth in Section 3.09 (or, in respect of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). The Company will commence an Asset Sale 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”)3.10 hereof. 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)Proceeds, the Company may repay any principal amount, or accrued and its Restricted Subsidiaries may use any remaining unpaid interest thereon, owing pursuant to the City Improvement Bonds, the FF&E Financing and/or the Second Mortgage Notes (not to exceed, in the aggregate, the amount by which the Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in any manner not prohibited by this Indenture. If exceeds the aggregate principal amount (or accreted valueof Notes, as applicable) of Notes and/or the Pari Passu Indebtedness surrendered plus accrued and unpaid interest thereon, tendered 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) and may, for purposes subject to the provisions 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) Indenture and the Company may Collateral Documents, 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in by this Indenture by virtue thereof.
(g) The Company’s obligation to make an offer to repurchase and the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.Collateral
Appears in 1 contract
Sources: Indenture (Windsor Woodmont Black Hawk Resort Corp)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale (including a Sale of Designated Assets) unless:
(1) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such the Asset Sale) Sale at least equal to the fair market value (measured at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and;
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration for such received in the Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), received Sale by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the following will shall be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(A) any liabilities (liabilities, as shown on the Company’s or any Restricted Subsidiary’s 's most recent balance sheet or in the notes thereto or, if incurred or accrued subsequent to the date of such consolidated 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 Guarantor’s Guarantee of the Notes, ) that are (i) assumed by the transferee of any such assets (pursuant to a customary novation 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 similar agreement that releases the Company or a such Restricted Subsidiary)Subsidiary from further liability;
(B) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are promptly, subject to ordinary settlement periods, converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalentscash, 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;received in that conversion; and
(C) any Designated Non-Cash Consideration received by except in the Company or case of 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) $400.0 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 measuredAssets, at the Company’s option, either at the time of contractually agreeing to such Asset Sale any stock 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 assets of the kind referred to in clauses (4) or (6) of Section 4.10(b)(24.10(b); and
(F3) with respect to any in the case of a Sale of Designated Assets other than Canadian Gas Assets, the Company (or the Restricted Subsidiary, as the case may be) shall deposit the Net Proceeds as cash collateral in a segregated account (a "Designated Asset Sale of Oil and Gas Properties disposed of Proceeds Account") held by the Collateral Trustee or its agent to secure the Secured Obligations; provided, that for so long as the terms of any of the Company's senior unsecured notes that were issued prior to August 10, 2000 would prevent such a pledge by a Restricted Subsidiary, the Company shall deposit with the Collateral Trustee or any its agent an amount of cash equal to the Net Proceeds as cash collateral to secure the Secured Obligations, and the applicable Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related shall not be obligated to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof)do so.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, other than a Sale of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Designated Assets that are not Canadian Gas Assets, the Company (or a the applicable Restricted Subsidiary, at its option, as the case may be) may apply an amount equal to such those Net Proceeds (the “Applicable Proceeds”)::
(1) to repay, redeem or repurchase:repay Priority Lien Debt and/or cash collateralize letters of credit constituting Priority Lien Debt;
(A2) Obligations in the case of an Asset Sale by a Restricted Subsidiary, to repay or repurchase Indebtedness of Calpine Canada Energy Finance ULC and/or Calpine Canada Energy Finance II ULC existing on the date of this Indenture;
(3) in the case of an Asset Sale by a Restricted Subsidiary, to repay or repurchase Indebtedness of any Restricted Subsidiary and, if such Indebtedness is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(4) to acquire all or substantially all of Senior Indebtednessthe assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(5) to make a capital expenditure; 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; or
(26) to make (a) an Investment in any one or more 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) acquire other expenditures made with respect to Oil and Gas Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) assets that are or will be not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business or a Permitted Business.
(iic) 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within Within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, any Net Proceeds from an Asset Sale that if any such commitment is 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 constitutes a Sale of the foregoing.
(c) Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantDesignated Assets other than Canadian Gas Assets, the Company and its (or the Restricted Subsidiaries Subsidiary that disposed of those Designated Assets, as the case may temporarily reduce be) may apply those Net Proceeds to purchase other assets that would constitute Designated Assets or to repay Priority Lien Debt and/or cash collateralize letters of credit constituting Priority Lien Debt and, if such Priority Lien Debt is revolving credit Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indentureto correspondingly reduce commitments with respect thereto.
(d) The amount equal to the Applicable Any Net Proceeds from Asset Sales (including Sales of Designated Assets) that are not applied or invested or applied as provided and within in the time period set forth in preceding clauses of this Section 4.10(b) will be deemed to 4.10 shall constitute “"Excess Proceeds”. ." When the aggregate amount of Excess Proceeds exceeds $50.0 million, or at such earlier point as may be elected by the Company, the Company will shall make an offer to all Holders and, at the option holders of the Company, to any Notes and all holders of any other Indebtedness that is pari passu with the Notes and equally and ratably secured 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, including the 2007 Notes, the 2010 Notes, the Term Loans and each series of Existing Indebtedness that contains similar asset sale provisions, when applicable (“Pari Passu Indebtedness” and such offer, an “"Asset Sale Offer”"), to purchase or redeem the maximum aggregate principal amount of the Notes notes and such Pari Passu other pari passu Indebtedness that is in an amount equal to at least $2,000, or an integral multiple of $1,000 in excess of $2,000, that may be purchased or redeemed out of the Excess Proceeds at an (including each series of Existing Indebtedness that contains similar asset sale provisions). The offer price, price in the case of the Notes, in cash in an amount any Asset Sale Offer shall be equal to 100% of the principal amount thereof (or accreted value thereof, 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 provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to the date fixed for the closing of such offerpurchase, and shall be payable in accordance with the procedures set forth in Section 3.09 (or, in respect cash. If any Excess Proceeds remain after consummation of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). The Company will commence an Asset Sale 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 those Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in for any manner purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the Pari Passu notes and other pari passu Indebtedness surrendered in an tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, will Company shall select the Notes to be purchased in the manner described under Section 3.02 and the Company will select such Pari Passu other 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 denominationbasis. Upon completion of any such each 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 shall 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 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)zero.
(e) [Reserved]Notwithstanding the foregoing, to the extent that any or all of the Net Proceeds of any Foreign Asset Sale is prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Proceeds so affected shall not be required to be applied at the time provided above, but may be retained by the applicable Restricted Subsidiary so long, but only so long, as the applicable local law shall not permit repatriation to the United States. The Company shall promptly take or cause the applicable Restricted Subsidiary to promptly take all actions required by the applicable local law to permit such repatriation. Once such repatriation of any of the affected Net Proceeds is permitted under the applicable local law, the repatriation shall be immediately effected and the repatriated Net Proceeds shall be applied in the manner set forth in this Section 4.10 as if the Asset Sale had occurred on the date of such repatriation.
(f) Notwithstanding the foregoing, to the extent that the Board of Directors determines, in good faith, that repatriation of any or all of the Net Proceeds of any Foreign Asset Sale would have a material adverse tax consequence to the Company, the Net Proceeds so affected may be retained outside of the United States by the applicable Restricted Subsidiary for so long as such material adverse tax consequence would continue.
(g) 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 such those laws or and regulations are applicable in connection with the each repurchase of the Notes notes pursuant to an Asset Sale Offer or Advance Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations described in under the Asset Sale provisions of this Indenture by virtue thereofof such conflict.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Indenture (Calpine Corp)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
: (1i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at evidenced by a resolution of the time Board of contractually agreeing Directors set forth in an Officers' Certificate delivered to such Asset Salethe Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (2ii) 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), therefor received by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that each the amount of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(Ax) any liabilities (as shown on the Company’s 's or any such Restricted Subsidiary’s 's most recent balance sheet or in the notes thereto orsheet), 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 Guarantor’s Guarantee of the Notes, thereof) that are (i) assumed by the transferee of any such assets (or pursuant to 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 customary novation agreement that releases the Company or a such Restricted Subsidiary);
Subsidiary from further liability and (By) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are contemporaneously (subject to ordinary settlement periods) converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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) $400.0 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 shall be deemed to be a Restricted Subsidiary as a result cash for purposes 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 this Section 4.10(b)(2); and
(F) with respect to any Asset Sale of Oil and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) 4.10. Within 365 270 days after the receipt of any Net Proceeds of any from an Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or a Restricted Subsidiarymay apply such Net Proceeds, at its option, may apply (a) to repay Indebtedness under the New Credit Facility, or (b) to the acquisition of a majority of the assets of, or a majority of the Voting Stock of, an entity that is engaged in another Permitted Business and that becomes a Restricted Subsidiary, the making of a capital expenditure or the acquisition of other long-term assets that are used or useful in a Permitted Business ("Replacement Assets"); provided, however, that in connection with any repayment of Indebtedness under the New Credit Facility pursuant to clause (a), the Company will retire such Indebtedness and will cause the related commitment to be reduced in an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 principal 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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) repaid. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantsuch Net Proceeds, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, revolving credit borrowings or otherwise use invest such Applicable Net Proceeds in any manner that is not prohibited by the Indenture.
(d) The amount equal to the Applicable . Any Net Proceeds from Asset Sales that are not applied or invested or applied as provided and within in the time period set forth in Section 4.10(b) first sentence of this paragraph will be deemed to constitute “"Excess Proceeds”. ." When the aggregate amount of Excess Proceeds exceeds $50.0 5.0 million, the Company will be required to make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “"Asset Sale Offer”), ") in accordance with the procedures set forth in Section 3.9 to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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 Proceeds, at an offer price, in the case of the Notes, price in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other priceinterest and Liquidated Damages thereon, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to the date fixed for the closing of such offerpurchase, 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). The Company will commence an Asset Sale 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”)Indenture. To the extent that the aggregate principal amount (or accreted value, as applicable) any Excess Proceeds remain after consummation 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 such Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in for any manner purpose not otherwise 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 tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, will Trustee shall 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 denominationbasis. Upon completion of any such Asset Sale Offeroffer to purchase, for purposes of this provision the amount of Excess Proceeds (or in shall be reset at zero. Notwithstanding the case of an Advance Offerimmediately preceding paragraphs, the Advance Portion) that resulted in the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale Offer or Advance Offer will be reset without complying with such paragraphs to zero the extent (regardless i) 100% of whether there are any remaining Excess Proceeds (or Advance Portion) upon the consideration for such completion) and the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited under this Indenture. An Asset Sale Offer constitutes either Replacement Assets or Advance Offer may be made at cash or Cash Equivalents or any combination thereof and (ii) such Asset Sale is for fair market value as determined in good faith by the same time as consents are solicited Company's Board of Directors; provided, that if the total consideration with respect to an amendment, supplement or waiver of this Indenture, Notes and/or Guarantees (but the any such Asset Sale Offer is greater than $10.0 million (as determined in good faith by the Company's Board of Directors), the Company shall obtain a fairness opinion from an independent accounting, appraisal or Advance Offer may investment banking firm of national standing; provided further, that any consideration not condition tenders on constituting Replacement Assets received by the delivery Company or any 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 such laws or regulations are applicable its Restricted Subsidiaries in connection with the repurchase of the Notes pursuant to an any Asset Sale Offer or Advance Offer. To the extent that permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in this Indenture by virtue thereofimmediately preceding paragraph.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1i) the Company (or such the 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) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; andand 52 Sixteenth Supplemental Indenture
(2ii) except in the case of a Permitted Asset Swap, either (x) at least 75% of the consideration for such received in the Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), received Sale by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that Equivalents 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 or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(A) any liabilities (liabilities, as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto or, if incurred or accrued subsequent to the date of such consolidated 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 Guarantor’s Guarantee of the Notes, Subsidiary Guarantee) that are (i) assumed by the transferee of any such assets (or pursuant to 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 customary novation agreement that releases the Company or a such Restricted Subsidiary)Subsidiary from further liability;
(B) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalentswithin 180 days after the date of the Asset Sale, 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 Salereceived in that conversion;
(C) any Designated Non-Cash Consideration received by the Company stock 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) $400.0 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 assets of the kind referred to in clauses (ii) or (iv) of Section 4.10(b)(2)10.12(b) below; and
(FD) with respect to any Asset Sale accounts receivable of Oil and Gas Properties disposed of a business retained by the Company or any Restricted Subsidiary in which Subsidiary, as the Company or any Restricted Subsidiary retains an interestcase may be, following the costs and expenses related to the exploration, development, completion or production sale of such Oil business, provided that such accounts receivable (1) are not past due more than 90 days and Gas Properties and activities related thereto agreed to be assumed by (2) do not have a payment date greater than 120 days from the transferee (or an Affiliate thereof)date of the invoice creating such accounts receivable.
(b) Within 365 360 days after the receipt of any Net Proceeds of any from an Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company (or a any of its applicable Restricted Subsidiary, at its option, may Subsidiaries) may:
(i) apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):to repay Senior Debt;
(1ii) apply an amount equal to repay, redeem or repurchase:such Net Proceeds to invest in Additional Assets;
(Aiii) Obligations apply an amount equal to such Net Proceeds to make capital expenditures in respect of Senior Indebtednessa Related Business of the Company or any of its Restricted Subsidiaries; or
(Biv) Obligations in respect of Indebtedness of enter into a Restricted Subsidiary that is not bona fide binding contract with a Guarantor, Person other than Obligations owed an Affiliate of the Company to apply an amount equal to the Company Net Proceeds pursuant to clauses (ii) or a Restricted Subsidiary; or
(2iii) to make (a) an Investment in any one or more businesses; above, 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will contract shall be treated as a permitted application of the Applicable Net Proceeds from the date of such commitment so long as contract until the Company or a Restricted Subsidiary enters into such commitment with the good faith expectation that such Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is later cancelled or terminated for any reason before such Applicable Proceeds are applied, then such Applicable Proceeds will constitute Excess Proceeds (as defined below); orearlier of:
(3A) any combination the date on which such acquisition or expenditure is consummated, and
(B) the 180th day following the expiration of the foregoing.
(c) Pending the final application of the amount of any Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable aforementioned 360-day period. 53 Sixteenth Supplemental Indenture Any Net Proceeds from Asset Sales that are not applied or invested or applied as provided and within the time period set forth in Section 4.10(bclauses (i) through (iv) above will be deemed to 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 $50.0 40.0 million, the Company will make an offer (the “Asset Sale Offer”) to all Holders and, at the option of the Company, to any Notes and all holders of any other Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”)containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, to purchase the maximum aggregate principal amount of the Notes and such Pari Passu other pari passu Indebtedness that is in an amount equal to 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 Proceeds. The offer price, price in the case of the Notes, in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof (or accreted value thereof, 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 provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to the date fixed for the closing of such offerpurchase, and will be payable in accordance with the procedures set forth in Section 3.09 (or, in respect cash. If any Excess Proceeds remain after consummation of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). The Company will commence an Asset Sale 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 those Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in for any manner purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the Pari Passu and other pari passu Indebtedness surrendered in an tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, Trustee 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 in the accreted value case of definitive notes, or principal amount in accordance with the procedures of DTC, in 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 denominationcase of global notes. Upon completion of any such each 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 at zero.
(regardless d) Notwithstanding the foregoing, the sale, conveyance or other disposition of whether there are any remaining Excess Proceeds (all or Advance Portion) upon such completion) and substantially all of the assets of the Company, or of 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 and its Restricted Subsidiaries, taken as a whole, will be made at the same time as consents are solicited with respect to an amendment, supplement or waiver governed by Sections 8.1 and/or 10.15 of this Indenture, Notes and/or Guarantees (but the Asset Sale Offer or Advance Offer may as applicable, and not condition tenders on the delivery of such consents)by this Section 10.12.
(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 such those laws or and regulations are applicable in connection with the each 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 the Asset Sale provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in under the Asset Sale provisions of this Indenture by virtue thereofof such compliance.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Sixteenth Supplemental Indenture (Plains Exploration & Production Co)
Asset Sales. (a) The Company will shall not, and will shall not permit any of the Restricted Subsidiary Subsidiaries to, consummate cause or make an Asset Sale, unless:
unless (1x) the Company or such any Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value Fair Market Value (measured at the time of contractually agreeing to such Asset Saleas determined in good faith by Company) of the assets sold or otherwise disposed of; and
, and (2y) 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), therefor received by the Company or a such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):amount of:
(Ai) any liabilities (as shown on the Company’s or any a Restricted Subsidiary’s most recent balance sheet or in the notes thereto or, if incurred or accrued subsequent to the date thereto) of such balance sheet, such liabilities that would have been reflected on the Company’s Company 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 liabilities that are by their terms subordinated in right of payment to the Notes Loans or any Guarantor’s Guarantee of the Notes, Guarantee) that are (i) assumed by the transferee of any such assets (or a third party in connection with such transfer) or (ii) that are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or a Restricted Subsidiary);transferee,
(Bii) any securities, notes or other obligations or other securities or assets received by the Company or a such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received),
(iii) within 180 days following the closing Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale;, to the extent that Company and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale,
(Civ) consideration consisting of Indebtedness of Company (other than Subordinated Indebtedness) received after the Effective Date from Persons who are not Company or any Restricted Subsidiary, and
(v) any Designated Non-Cash cash Consideration received by the Company or a any Restricted Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value (as determined in good faith by Company), taken together with all other Designated Non-Cash cash Consideration received pursuant to this clause (CSection 7.4(a)(v) that is at that time outstanding, not to exceed the greater of (i) $400.0 30.0 million and (ii) 5.025% of Adjusted Consolidated Net Tangible Assets of the Company EBITDA at the time of the receipt of such Designated Non-Cash Consideration, cash Consideration (with the fair market value Fair Market Value of each item of Designated Non-Cash cash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and without giving effect to subsequent changes in value;
(D) Indebtedness of any Restricted Subsidiary that ceases ), shall be deemed to be a Restricted Subsidiary as a result Cash Equivalents for the purposes 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 this Section 4.10(b)(2); and
(F) with respect to any Asset Sale of Oil and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof7.4(a).
(b) Within 365 days after the Company’s or any Restricted Subsidiary’s receipt of any the Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) belowSale, the “Asset Sale Proceeds Application Period”), the Company or a such Restricted SubsidiarySubsidiary may apply the Net Proceeds from such Asset Sale, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or repurchase:
(i) to repay (A) Obligations in Indebtedness constituting Bank Indebtedness and other Pari Passu Indebtedness that is secured by a Lien permitted under this Agreement (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect of Senior Indebtedness; or
thereto), (B) Obligations in respect of Indebtedness of a Restricted Subsidiary that is not a Guarantor, (C) the obligations under the Loans or (D) other Pari Passu Indebtedness (provided that if Company or any Guarantor shall so reduce the Obligations under unsecured Pari Passu Indebtedness under this clause (D), Company will equally and ratably reduce the Obligations hereunder), in each case other than Obligations Indebtedness owed to the Company or a Restricted Subsidiaryan Affiliate of Company; or
(2ii) to make (a) an Investment investment in any one or more businesses; businesses (provided that if such Investment in any business investment is in the form of the acquisition of Capital Stock and of a Person, such acquisition results in the Company or any such Person becoming a Restricted Subsidiary owning an amount of the Capital Stock of such business such that it constitutes Company), assets, or continues to constitute a Restricted Subsidiary, (b) property or capital expenditures, in each case (cA) other expenditures made with respect to Oil and Gas Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas a Similar Business or (iiB) that replace, in whole or in part, replace the properties or and assets that are the subject of such Asset Sale; provided that in Sale or to reimburse the cost of any of the foregoing incurred on or after the date on which the Asset Sale giving rise to such Net Proceeds was contractually committed. In the case of this clause (2Section 7.4(b)(ii), a binding commitment will shall be treated as a permitted application of the Applicable Net Proceeds from the date of such commitment until the 18-month anniversary of the date of the receipt of such Net Proceeds; provided that in the event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so long as the applied, then such Net Proceeds shall constitute Excess Proceeds unless Company or a such Restricted Subsidiary enters into such another binding commitment with the good faith expectation that such Applicable Proceeds will be applied to satisfy such commitment (a “Second Commitment”) within 180 days six months of such commitment (or, if later, 365 days after cancellation or termination of the receipt of such Applicable Proceeds)prior binding commitment; provided, further, that if any Company or such commitment Restricted Subsidiary may only enter into a Second Commitment under the foregoing provision one time with respect to each Asset Sale and to the extent such Second Commitment is later cancelled or terminated for any reason before such Applicable Net Proceeds are appliedapplied or are not applied within 180 days of such Second Commitment, then such Applicable Net Proceeds will shall constitute Excess Proceeds (as defined below); or
(3) any combination of the foregoing.
(c) Proceeds. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantsuch Net Proceeds, the Company and its or such Restricted Subsidiaries Subsidiary may temporarily reduce IndebtednessIndebtedness under a revolving credit facility, if any, or otherwise use invest such Applicable Net Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable this Agreement. Any Net Proceeds from any Asset Sales Sale that are not invested or applied as provided and within the time period set forth in the first sentence of this Section 4.10(b7.4(b) will be deemed to constitute “Excess Proceeds”. .” When the aggregate amount of Excess Proceeds exceeds $50.0 25.0 million, Company shall repay the Company will make an offer Loans pursuant to all Holders Section 2.3(b) (and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is ) in an amount equal to 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 priceand, in the case of the Notes, in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any (or, in respect of upon such Pari Passu Indebtedness, such other price, if any, as may be provided 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). The Company will commence an Asset Sale Offer with respect to Excess Proceeds within 30 days after the date that prepayment 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 shall be reset at zero. Notwithstanding anything herein to the Trusteecontrary, or otherwise the Company shall not be required to apply the Net Proceeds of any Asset Sale in accordance with Applicable Procedures. The Company may satisfy this Section 7.4 to the foregoing obligation with respect to any Applicable extent that such Net Proceeds arise from an Asset Sale by making an offer to purchase Notes with respect of a Foreign Subsidiary or the assets thereof, and the distribution of such Net Proceeds to the amount of all or part of the available Applicable Proceeds (the “Advance Portion”) prior Company in order 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes7.4 would cause material adverse tax consequences.
Appears in 1 contract
Sources: Senior Unsecured Bridge Term Loan Credit Agreement (XPO Logistics, Inc.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1i) the Company or such the applicable Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) 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; andof (as determined in good faith by the Board of Directors of the Company);
(2ii) 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 the Restricted Subsidiary, as the case may be, is from such Asset Sale shall be in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):amount of:
(A) any liabilities (as shown on the Company’s or any such Restricted Subsidiary’s most recent 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 such Restricted Subsidiary, Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, ) that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary)assets;
(B) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale);
(C) any Designated Non-Cash cash Consideration received by the Company or a any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of (i) $400.0 125.0 million and (ii) 5.03.0% of Adjusted Consolidated Net Tangible Total Assets of the Company at the time of the receipt of such Designated Non-Cash Consideration, cash Consideration (with the fair market value of each item of Designated Non-Cash cash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and 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
(FD) with respect to any Asset Sale Productive Assets. shall, in each of Oil (A), (B), (C) and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest(D) above, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed be deemed to be assumed by cash for the transferee (or an Affiliate thereof).purposes of this provision; and
(biii) Within 365 days after upon the receipt consummation of any Net Proceeds of any an Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company shall apply, or a cause such Restricted SubsidiarySubsidiary to apply, at its option, may apply an amount equal the Net Cash Proceeds relating to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or repurchaseAsset Sale within 365 days of receipt thereof:
(A) Obligations in respect of to prepay any Senior Indebtedness; or
(B) Obligations in respect of Debt or Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Obligations owed to the Company or a Restricted Subsidiary; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securitiesGuarantor and, in the case of clausesany such Indebtedness under any revolving credit facility, effect a corresponding reduction in the availability under such revolving credit facility (or effect a permanent reduction in the availability under such revolving credit facility regardless of the fact that no prepayment is required in order to do so (in which case no prepayment should be required)),
(aB) to reinvest in Productive Assets (d) and provided that this clause (e), either (i) that are requirement shall be deemed satisfied if the Company or will be used or useful in such Restricted Subsidiary by the Oil and Gas Business or (ii) that replace, in whole or in part, the properties or assets that are the subject end of such Asset Sale; provided that in the case of this clause (2), 365-day period has entered into a binding commitment will be treated as a permitted application of the Applicable Proceeds agreement under which it is contractually committed to reinvest in Productive Assets and such investment is consummated within 120 days from the date on which such binding agreement is entered into and, with respect to the amount of such commitment so long investment, the reference to the 366th day after an Asset Sale in the second following sentence shall be deemed to be a reference to the 121st day after the date on which such binding agreement is entered into (but only if such 121st day occurs later than such 366th day)), or
(C) a combination of prepayment and investment permitted by the foregoing clauses (iii)(A) and (iii)(B). Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds in Cash Equivalents. On the 366th day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines by Board Resolution not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses (iii)(A), (iii)(B) and (iii)(C) above (the “Asset Sale Offer Trigger Date”), such aggregate amount of Net Cash Proceeds that have not been applied as set forth in clauses (iii)(A), (iii)(B) and (iii)(C) above on or before such Asset Sale Offer Trigger Date (each an “Asset Sale Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Asset Sale Offer”) on a date (the “Asset Sale Offer Payment Date”) not less than 30 nor more than 60 days following the applicable Asset Sale Offer Trigger Date, from all Holders and holders of any other Indebtedness of the Company or a Restricted Subsidiary enters into such commitment with the good faith expectation that such Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is ranking pari passu with the Notes requiring the making of such an offer (the “Pari Passu Indebtedness” and such offer, an “Asset Sale OfferDebt”), to purchase on a pro rata basis, the maximum aggregate principal amount of the Notes and such other Pari Passu Indebtedness that is in an amount equal to at least $2,000, or an integral multiple of $1,000 in excess of $2,000, Debt that may be purchased out of with the Excess Proceeds Asset Sale Offer Amount at an offer price, in the case of the Notes, in cash in an amount a price equal to 100% of the their principal amount thereof (or accreted value thereof, if less)amount, plus accrued and unpaid interestinterest thereon, if any any, to the date of purchase (or, in respect of such other Pari Passu IndebtednessDebt, such other lesser price, if any, as may be provided for by the terms of such Pari Passu IndebtednessDebt), to, but excluding, the date fixed for the closing of such offer, in accordance with the procedures (including pro-rating in the event of over-subscription and calculation of the principal amount of Notes denominated in different currencies) set forth in this Indenture.
(b) If at any time any non-cash consideration (including any Designated Non-cash Consideration) received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10.
(c) Notwithstanding the foregoing, if the Asset Sale Offer Amount is less than $100.0 million, the application of the Net Cash Proceeds constituting such Asset Sale Offer Amount to an Asset Sale Offer may be deferred until such time as such Asset Sale Offer Amount plus the aggregate amount of all Asset Sale Offer Amounts arising subsequent to the Asset Sale Offer Trigger Date relating to such initial Asset Sale Offer Amount from all Asset Sales by the Company and its Restricted Subsidiaries aggregates at least $100.0 million, at which time the Company or such Restricted Subsidiary shall apply all Net Cash Proceeds constituting all Asset Sale Offer Amounts that have been so deferred to make an Asset Sale Offer (the first date the aggregate of all such deferred Asset Sale Offer Amounts is equal to $100.0 million or more shall be deemed to be an Asset Sale Offer Trigger Date). Each Asset Sale Offer will be mailed to the record Holders as shown on the register of Holders within 30 days following the Asset Sale Offer Trigger Date, with a copy to the Trustee, and shall comply 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)hereof. The Company will commence an Asset Sale 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 Upon receiving 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 Offer, Holders may elect to tender their Notes in whole or in part in the case of the Dollar Notes, in a minimum of $1,000 or in integral multiples of $1,000 in excess thereof (provided that no Note will be purchased in part if such Note would have a remaining amount of all or a part less than $100,000) and in the case of the available Applicable Proceeds Euro Notes, in advance a minimum of being required to do so by this Indenture €1,000 or in integral multiples of €1,000 in excess thereof (provided that no Note will be purchased in part if such Note would have a remaining amount of less than €50,000), in exchange for cash. To the “Advance Offer”extent Holders properly tender Notes (and, if applicable, holders of Pari Passu Debt, tender Pari Passu Debt) in an aggregate amount exceeding the Asset Sale Offer Amount Notes of tendering Holders and Pari Passu Debt of holders thereof will be purchased on a pro rata basis (based on amounts tendered). To the extent that the aggregate principal amount (or accreted value, as applicable) of Notes and such other Pari Passu Indebtedness Debt tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds (or in the case of an Advance Offer, the Advance Portion), Asset Sale Offer Amount the Company and its Restricted Subsidiaries may use any remaining Excess Proceeds (Asset Sale Offer Amount for general corporate purposes or in the case of an Advance Offer, the Advance Portion) in for any manner other purpose 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 Amount shall 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 Indentureat zero. An Asset Sale Offer or Advance Offer may be made at 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 shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or and regulations are applicable in connection with 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 the provisions of this IndentureSection 4.10, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations described in under this Indenture Section 4.10 by virtue thereof.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1) the Company (or such a Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such the Asset Sale) Sale at least equal to the fair market value (measured at as of the time date of contractually agreeing the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the aggregate 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 and its Restricted Subsidiary, as Subsidiaries in the case may be, Asset Sale is in the form of cash cash, Cash Equivalents or Cash Equivalents; provided that Replacement Assets or any combination of the foregoing. For purposes of this provision, each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(Aa) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto orfootnotes thereto, or as would be shown on such balance sheet or footnotes if such liability was 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, such Subsidiary (other than contingent liabilities and liabilities that are by their terms contractually subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, Note Guarantee) that are (i) assumed or forgiven by the transferee of any such assets (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 pursuant to an agreement that releases the Company or a Restricted Subsidiary)such Subsidiary from further liability, or that are otherwise released or assumed;
(Bb) any securities, notes or other obligations or assets received by the Company or a any Restricted Subsidiary from such transferee or in connection with such that are, within 210 days after the Asset Sale (including earnouts and similar obligations) that are Sale, converted by the Company or a Restricted such Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;received in that conversion; and
(Cc) any Designated Non-Cash Consideration received by the Company or a any 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 (Cc) that is at that the time outstanding, not to exceed the greater of (ix) $400.0 50.0 million and (iiy) 5.02.5% of Adjusted the Company’s 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 measured at the time received and, in either case, and 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or any Restricted Subsidiary 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, repurchase or otherwise retire any Senior Debt of the Company or any of its Subsidiaries, including the Notes and the Existing Notes;
(2) to acquire all or substantially all of the properties or assets of a Person primarily engaged in a Permitted Business if, after giving effect to such acquisition, such Person is or becomes a Restricted Subsidiary of the Company;
(3) to acquire any Capital Stock of a Person operating a Permitted Business if, after giving effect to such acquisition, such Person operating a Permitted Business is or becomes a Restricted Subsidiary of the Company;
(4) to make capital expenditures in respect of the Company’s or its Restricted Subsidiaries’ Permitted Business or make an Investment in Replacement Assets; or
(5) to acquire other assets that are used or useful in a Permitted Business or make an Investment in assets that will be used or useful in the Company’s business. The requirement of clauses (2) through (5) of this Section 4.10(b) shall be deemed to be satisfied if a bona fide binding contract committing to make the acquisition, purchase, Investment or expenditure referred to therein is entered into by the Company (or any Restricted Subsidiary, at its option, may apply ) within the time period specified in this Section 4.10(b) and an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or repurchase:
(A) Obligations is subsequently applied 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; or
(2) to make (a) an Investment in any one or more businesses; provided that accordance with 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable Proceeds from contract within six months following 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment agreement is 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) entered into. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantsuch Net Proceeds, the Company and its or any Restricted Subsidiaries Subsidiary may temporarily reduce Indebtedness, or otherwise use utilize such Applicable Net Proceeds in any manner that is not prohibited by the this Indenture.
(dc) The amount equal to the Applicable Any Net Proceeds from Asset Sales that are not applied or invested or applied as provided and within the time period set forth in Section 4.10(b) hereof will be deemed to constitute “Excess Proceeds”. When ” (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) shall be deemed to have been invested whether or not such offer is accepted).
(d) Within 10 Business Days after the aggregate amount of Excess Proceeds exceeds $50.0 millionmillion (or, at the Company’s option, on any earlier date or for any lesser amount), the Company will make an offer to all Holders and, at (the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”)) to all Holders of Notes, and all holders of other Pari Passu Debt containing provisions similar to those set forth in this Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets, to purchase purchase, prepay or redeem the maximum aggregate principal amount of the Notes and such other Pari Passu Debt (plus all accrued interest on the Indebtedness that is and the amount of all fees and expenses, including premiums, incurred in an amount equal to at least $2,000, or an integral multiple of $1,000 in excess of $2,000, connection therewith) that may be purchased purchased, prepaid or redeemed out of the Excess Proceeds at an Proceeds. The offer price, price in the case of the Notes, in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof (or accreted value thereof, 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 provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to the date fixed for of settlement, subject to the closing right of such offerHolders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the date of settlement, and will be payable in accordance with cash. If any Excess Proceeds remain after the procedures set forth in Section 3.09 (or, in respect consummation of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). The Company will commence an Asset Sale 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 or any Restricted Subsidiaries Subsidiary may use any remaining those Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in for any manner purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the and other Pari Passu Indebtedness surrendered in an Debt tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, Trustee will select the Notes to be purchased in the manner described under Section 3.02 and the Company will trustee or agent for such other Pari Passu Debt shall select such Pari Passu Indebtedness Debt 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 (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 accreted value or principal amount of the Notes or Trustee, a method that most nearly approximates pro rata selection) but with such Pari Passu Indebtedness tendered with adjustments as necessary so that no Notes or other Pari Passu Indebtedness will be repurchased Debt is purchased in part in an unauthorized authorized denomination. Upon completion of any such each 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 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)zero.
(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 such those laws or and regulations are applicable in connection with the each 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 the provisions of Section 3.09 hereof or this IndentureSection 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to under Section 3.09 hereof or this Section 4.10 may be waived or modified with the written consent by virtue of the Holders of a majority in principal amount of the then outstanding Notessuch compliance.
Appears in 1 contract
Sources: Indenture (CVR Energy Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, unless:
(1) sell, lease, convey or otherwise dispose of any assets (including by way of a Sale and Leaseback Transaction, but excluding a Qualifying Sale and Leaseback Transaction) other than sales of inventory in the ordinary course of business (provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company will be governed by the provisions of Section 4.18 of the Indenture and/or the provisions of Section 5.1 of the Indenture and not by the provisions of this Section 4.17); or
(2) issue or such sell Equity Interests of any of its Restricted Subsidiaries that in the case of either clause (1) or (2) above, whether in a single transaction or a series of related transactions:
(i) have a fair market value in excess of $2.0 million; or
(ii) result in Net Proceeds in excess of $2.0 million (each of the foregoing, an “Asset Sale”) unless (x) the Company (or the Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at evidenced by an Officers’ Certificate delivered to the time Trustee, and for Asset Sales having a fair market value or resulting in Net Proceeds in excess of contractually agreeing $10.0 million, evidenced by a resolution of the Board of Directors set forth in an Officers’ Certificate delivered to such Asset Salethe Trustee) of the assets sold or otherwise disposed of; and
of and (2y) 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), therefor received by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that like-kind assets (in each case as determined in good faith by the Company, evidenced by a resolution of the following will be deemed Board of Directors and certified by an Officers’ Certificate delivered to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):the Trustee); provided, however, that the amount of:
(A) any liabilities (as shown on the Company’s or any such Restricted Subsidiary’s most recent 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 Companythereto) of the Company or any such Restricted Subsidiary, Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, Note Guarantee) that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary);assets; and
(B) any securities, notes or other obligations or assets received by the Company or a such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are immediately converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash received) or Cash Equivalents receivedEquivalents, shall be deemed to be cash for purposes of this provision; and provided, further, that the 75% limitation referred to in the foregoing clause (ii) within 180 days following (y) shall not apply to any Asset Sale in which the closing cash portion of the consideration received therefrom is equal to or greater than what the after-tax proceeds would have been had such Asset Sale;
(C) any Designated Non-Cash Consideration received Sale complied with the aforementioned 75% limitation. For the avoidance of doubt, a disposition that constitutes a Restricted Payment will be governed by the provisions of Section 4.8 and not by this Section 4.17. A transfer of assets or issuance of Equity Interests by the Company or to a Wholly Owned 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) $400.0 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 by a Wholly Owned 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 another Wholly Owned Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such will not be deemed to be an 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) . Within 365 360 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or a Restricted Subsidiarymay, at its option, may apply an amount equal to such the Net Proceeds (the “Applicable Proceeds”):from such Asset Sale either:
(1) to repay, redeem or repurchase:
(A) Obligations in respect of permanently reduce 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 SubsidiaryDebt; or
(2) to make (a) an Investment investment in any one a Restricted Subsidiary or more businesses; provided that such Investment in any another business is or capital expenditure or other long-term/tangible assets, in each case, in the form same line of the acquisition of Capital Stock and results in business as the Company or any of its 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, Subsidiaries was engaged in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable Proceeds from on the date of such commitment so long as the Company Sixth Supplemental Indenture or a Restricted Subsidiary enters into such commitment with the good faith expectation that such Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is later cancelled in businesses similar 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) reasonably related thereto. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantsuch Net Proceeds, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, Senior Bank Debt or otherwise use invest such Applicable Net Proceeds in any manner that is not prohibited by the Indenture.
(d) The amount equal to the Applicable . Any Net Proceeds from such Asset Sales Sale that are not applied or invested or applied as provided and within in the time period set forth in Section 4.10(b) first sentence of this paragraph will be deemed to constitute “Excess Proceeds”. .” When the aggregate amount of Excess Proceeds exceeds $50.0 10.0 million, the Company will shall make an offer to all Holders and, at the option of the CompanyNotes, to any all holders of the 8⅝% Notes, the 7¼% Notes, the 7¾% Notes, the 6⅝% Notes, the 8¾% Notes, the 8% Notes and the 6¾% Notes, and the holders of any future Indebtedness that is ranking pari passu with the Notes Notes, which Indebtedness contains similar provisions requiring the Company to repurchase such Indebtedness (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu other Indebtedness that is in an amount equal to 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 Proceeds, at an offer price, in the case of the Notes, price in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any (orany, in respect to the date of such Pari Passu Indebtednesspurchase, such other priceAdditional Interest and Additional Tax Amounts, if any, as may be provided 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). The Company will commence an Asset Sale 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”)Indenture. To the extent that the aggregate principal amount (or accreted value, as applicable) of Notes and such Pari Passu other pari passu Indebtedness (including the 8⅝% Notes, the 7¼% Notes, the 7¾% Notes, the 6⅝% Notes, the 8¾ % Notes, the 8% Notes and the 6¾% Notes) tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds (or in the case of an Advance OfferProceeds, 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 Indenturegeneral corporate purposes. An Asset Sale Offer or Advance Offer may If the aggregate principal amount of Notes and such other Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other Indebtedness to be made at 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 purchased on the delivery a pro rata basis. Upon completion of such consents).
(e) [Reserved].
(f) offer to purchase, the amount of Excess Proceeds 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 such those laws or and regulations are applicable in connection with the each 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 the provisions of this IndentureSection 4.17, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations described in this under the Asset Sale provisions of the Indenture by virtue thereofof such conflict. An Asset Sale Offer shall be made pursuant to the provisions of Section 3.10 hereof. No later than the date which is five Business Days after the date on which the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall notify the Trustee of such Asset Sale Offer and provide the Trustee with an Officers’ Certificate setting forth the calculations used in determining the amount of Net Proceeds to be applied to the purchase of Notes. The Company shall commence or cause to be commenced the Asset Sale Offer on a date no later than 15 Business Days after such notice (the “Commencement Date”).
(gk) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent Change of the Holders of a majority in principal amount of the then outstanding NotesControl Offer.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of the Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1) the Company (or such the 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 others) at the time of the Asset Sale) Sale at least equal to the fair market value (measured at as of the time date of contractually agreeing the definitive agreement with respect to such Asset Sale) of the assets or Capital Stock issued or sold or otherwise disposed Disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration for such received in the Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), received Sale by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(A) any liabilities (liabilities, as shown on the Company’s or any Restricted Subsidiary’s most recent 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 sheetthereto, 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 unsecured or subordinated in right of payment or as to Lien priority to the Notes Securities or any Guarantor’s Guarantee of the Notes, Securities Guarantee) that are (i) assumed by the transferee of any such assets (or pursuant to 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 customary novation agreement that releases the Company or a such Restricted Subsidiary)Subsidiary from further liability;
(B) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with that are within one hundred eighty (180) days after such Asset Sale (including earnouts and similar obligations) that are Sale, converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Salereceived in that conversion;
(C) any Designated Non-Cash cash Consideration received by the Company or a any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash cash Consideration received pursuant to this clause (C) that is at that time outstanding), not to exceed the greater of (i) $400.0 million 10,000,000 and (ii) 5.010% of Adjusted Consolidated Net Tangible Assets of EBITDA for the Company at the time of the receipt of most recently ended Test Period prior to such Designated Non-Cash ConsiderationAsset Sale, with the fair market value of each item of Designated Non-Cash cash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 three hundred and sixty (360) days after the receipt of any Net Proceeds of from any Asset Sale (as may be extended pursuant to clause (2) belowSale, the “Asset Sale Proceeds Application Period”)Swap, Designated Asset Swap or Event of Loss, the Company (or a the applicable Restricted Subsidiary, at its option, as the case may be) may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”)::
(1) to repayrepay Indebtedness and other Obligations under the Senior Credit Facility and if the terms of any such Senior Credit Facility require a permanent reduction in commitments or loans thereunder, redeem or repurchase:
(A) Obligations in to correspondingly permanently reduce any revolving commitments and/or loans with 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; orthereto;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Person engaged in a Related Business, if, after giving effect to any such acquisition, such Person engaged in the Related Business is or becomes a Restricted Subsidiary or such Related Business is or becomes a line of business of the Company;
(3) to make a capital expenditure not prohibited hereunder;
(a4) an Investment to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Related Business; and
(5) any one or more businessescombination of the foregoing; 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securitiesthat, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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 clauses (2), (3) and (4) above, a binding commitment will shall be treated as a permitted application of the Applicable Net Proceeds from the date of such commitment so long as the such Company or a such Restricted Subsidiary Subsidiary, as the case may be, enters into such commitment with the good faith expectation that such Applicable Net Proceeds will be applied to satisfy such commitment within 180 ninety (90) days of such commitment (orand, if later, 365 days after in the receipt of such Applicable Proceeds); provided, further, that if event any such commitment is later cancelled or terminated for any reason before such Applicable the Net Proceeds are appliedapplied in connection therewith, then such Applicable Net Proceeds will must be applied as set forth herein or if such cancellation or termination occurs later than the (three hundred and sixty) 360-day period referred to below, shall constitute Excess Proceeds. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds (as defined below); or
(3) in any combination of the foregoingmanner that is not prohibited by this Indenture.
(c) Pending the final application of the amount of any Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Any Net Proceeds from any Asset Sales Sale, Asset Swap, Designated Asset Swap or Event of Loss that are not applied or invested or applied as provided and within in the time period set forth in Section 4.10(b) second paragraph of this covenant will be deemed to constitute “Excess Proceeds”. When .” Within fifteen (15) days after the aggregate amount of Excess Proceeds exceeds $50.0 million10,000,000, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), ) to all Holders of Securities to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to at least $2,000, or an integral multiple of $1,000 in excess of $2,000, Securities that may be purchased out of with the Excess Proceeds at an Proceeds. The offer price, price in the case of the Notes, in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof (or accreted value thereof, 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 provided for by the terms of such Pari Passu Indebtedness), to, to but excluding, not including the date fixed for the closing of such offerpurchase, and will be payable 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)cash. The Company will commence may, at its option, satisfy the foregoing obligations with respect to any Net Proceeds from any Asset Sale, Asset Swap, Designated Asset Swap or Event of Loss by making an Asset Sale Offer with respect to Excess such Net 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 relevant three hundred and sixty (360) day period or with respect to the any lesser amount of all or a part of the available Applicable Excess Proceeds in advance of (it being required understood that such Net Proceeds used 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 make an Asset Sale Offer shall satisfy the foregoing obligations with respect to Net Proceeds whether or not such offer is less than the accepted). If any Excess Proceeds (or in the case remain after consummation of an Advance Asset Sale Offer, the Advance Portion), the Company and its Restricted Subsidiaries may use any remaining those Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in for any manner purpose not otherwise 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 Securities tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, Trustee will select the Notes Securities 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 for Definitive Securities but subject to the accreted value or principal amount procedures 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 denominationDepositary for Global Notes. Upon completion of any such each Asset Sale Offer, for purposes of this provision the amount of Excess Proceeds will be reset at zero.
(d) The Asset Sale Offer will remain open for a period of at least twenty (20) Business Days following its commencement and not more than thirty (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 Securities or, if less than the Offer Amount has been tendered, all Securities tendered in response to the Asset Sale Offer. Payment for any Securities 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 and premium, if any, will be paid to the Person in whose name a Security is registered at the close of business on such record date. Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a notice to the Trustee and each of the Holders, which contains all instructions and materials necessary to enable such Holders to tender Securities 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 4.11 and the length of time the Asset Sale Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Security not tendered or accepted for payment will continue to accrue interest;
(4) that, unless the Company defaults in making such payment, any Security accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date;
(5) that Holders electing to have a Security purchased pursuant to an Asset Sale Offer may elect to have Securities purchased in integral multiples of $1.00 only; provided that no Securities in denominations of $2,000 or less may be redeemed or purchased in part, or if a PIK Payment has occurred, no Securities of $1.00 or less shall be redeemed or purchased in part;
(6) that Holders electing to have Securities purchased pursuant to any Asset Sale Offer will be required to surrender the Security, with the form entitled “Option of Holder to Elect Purchase” attached to the Securities 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;
(7) that, if the aggregate principal amount of Securities surrendered by the Holders exceeds the Offer Amount, the Trustee will select Securities for purchase on a pro rata basis, by lot or other method in any case the Trustee considers appropriate, with respect to Global Notes, subject to the rules and procedures of the Depositary unless otherwise required by law or applicable stock exchange requirements; and
(8) that Holders whose Securities were purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered (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 Securities or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Securities tendered, and will deliver or cause to be delivered to the Trustee the Securities properly accepted together with an Officer’s Certificate stating that such Securities or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.11. 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 Securities tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Security, and the Trustee, upon a written order from the Company as described in Section 2.02, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Securities to such Holder, in a principal amount equal to any unpurchased portion of the Security surrendered. Any Security not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date. If less than all of the Securities are to be purchased in an Asset Sale Offer at any time, the Trustee will select Securities for purchase on a pro rata basis, by lot or other method in any case the Trustee considers appropriate, with respect to Global Notes, subject to the rules and procedures of the Depositary unless otherwise required by law or applicable stock exchange requirements. The Trustee will promptly notify the Company in writing of the Securities selected for purchase and, in the case of an Advance Offerany Securities selected for partial purchase, the Advance Portion) principal amount thereof to be purchased. Except as provided in this Section 4.11, provisions of this Indenture that resulted apply to Securities purchased also apply to portions of Securities purchased. No later than 10:00 a.m. Eastern Time on the Purchase Date, the Company will deposit with the Trustee or with the Paying Agent money sufficient to pay the purchase price of and accrued interest or premium, if any, on all Securities to be purchased on that date. The Trustee or the Paying Agent will promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the purchase price of, and accrued interest or premium, if any, on all Securities to be purchased. If the Company complies with the provisions of the preceding paragraph, on and after the Purchase Date, interest will cease to accrue on the Securities or the portions of Securities purchased. If any Securities purchased is not so paid upon surrender for redemption or purchase because of the failure of the Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or Purchase Date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided 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) Securities 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 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)in Section 4.01 hereof.
(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 such laws or and regulations are applicable in connection with the each repurchase of the Notes Securities pursuant to an Asset Sale Offer or Advance Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this IndentureSection 4.11, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described under this Section 4.11 by virtue of such compliance.
(f) Notwithstanding anything in this Indenture to the contrary, (i) to the extent that any of or all the Net Proceeds received by virtue thereof.
(g) The a Foreign Subsidiary are prohibited or delayed under any requirements of law from being repatriated to the Company’s obligation , the portion of such Net Proceeds so affected will not be required to make an offer to repurchase the Notes pursuant to be applied in compliance with this Section 4.10 4.11 and shall not constitute Excess Proceeds and may be waived retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable requirement of law will not permit repatriation to the Company (the Company hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable requirement of law to permit such repatriation), and once such repatriation of any of such affected Net Proceeds is permitted under the applicable requirement of law, such repatriation will be promptly effected and such repatriated Net Proceeds will be promptly applied (net of additional Taxes payable or modified reserved against as a result thereof) in compliance with this Section 4.11, and (ii) to the written consent extent that and for so long as the Company has determined in good faith that repatriation of any of or all the Holders Net Proceeds would have a material adverse tax consequence (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation), the Net Proceeds so affected will not be required to be applied in compliance with this Section 4.11 and shall not constitute Excess Proceeds and may be retained by the applicable Foreign Subsidiary; provided that when the Company determines in good faith that repatriation of any of or all the Net Proceeds received by a majority Foreign Subsidiary would no longer have a material adverse tax consequence (taking into account any foreign tax credit or benefit actually realized in principal amount connection with such repatriation), such Net Proceeds shall be promptly applied (net of the then outstanding Notesadditional Taxes payable or reserved against as a result thereof) in compliance with this Section 4.11.
Appears in 1 contract
Sources: Indenture (Noble Finance Co)
Asset Sales. (a) The Neither the Company nor any Guarantor will notcause, and will not permit make or suffer to exist any Restricted Subsidiary to, consummate an Asset Sale, Disposition of Collateral unless:
(1) the Company or such Restricted SubsidiaryGuarantor, 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 Fair Market Value (measured at such Fair Market Value to be determined on the time date of contractually agreeing to such Asset SaleDisposition) of the shares and assets sold or otherwise disposed of; andsubject to such Asset Disposition;
(2) except in the case of a Permitted an Asset Swap, at least 75% of the consideration for from such Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), Disposition received by the Company or a Restricted Subsidiarysuch Guarantor, as the case may be, is in the form of cash or Cash Equivalents; provided ;
(3) to the extent that each any consideration from such Asset Disposition that is not in the form of the following will be deemed to be cash or Cash Equivalents for purposes is of this Section 4.10(a)(2):
(A) any liabilities (as shown a type or class that constitutes Collateral then substantially simultaneously with its acquisition it shall be pledged under the Collateral Documents, with the Lien on such Collateral securing the Company’s or any Restricted Subsidiary’s most recent 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) Notes being of the Company or any Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment same priority with respect to the Notes or any Guarantor’s Guarantee of as the Notes, that are (i) assumed by Lien on the transferee of any such assets (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 the Company or a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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) $400.0 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)disposed of; and
(F4) with respect to the Net Available Cash from any such Asset Sale of Oil and Gas Properties disposed of Disposition is paid directly by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related purchaser thereof to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed Collateral Agent to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or held in trust in a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or repurchase:
(A) Obligations Collateral Account for application 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; or
(2) to make (a) an Investment in any one or more businesses; provided that such Investment in any business is in the form accordance with this covenant. All of the acquisition of Capital Stock and results in Net Available Cash received from a Recovery Event shall be deposited directly into the Company or any Restricted Subsidiary owning an amount of Collateral Account. Notwithstanding 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenantforegoing provisions, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds the Guarantors will not be required to cause any Net Available Cash to be held in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided for by the terms of such Pari Passu Indebtedness), to, but excluding, the date fixed for the closing of such offer, a Collateral Account in accordance with the procedures set forth in Section 3.09 preceding sentence and clause (or, in respect of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). The Company will commence an Asset Sale 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”4) 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 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 above except to the extent such laws or regulations the aggregate Net Available Cash from all Asset Dispositions of Collateral and Recovery Events that (x) are applicable not held in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.Collateral Account and
Appears in 1 contract
Sources: Indenture (United States Steel Corp)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary to, Subsidiaries to consummate an Asset Sale, unless:
Sale unless (1i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at the time of contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
, (2ii) except such fair market value is determined by the Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officer's Certificate delivered to the case of a Permitted Asset Swap, Trustee and (iii) at least 75% of the consideration for such Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), therefor received by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that cash. For purposes of this covenant each of the following will shall be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
cash: (Ax) any liabilities (as shown on the Company’s 's or any such Restricted Subsidiary’s 's most recent balance sheet or in the notes thereto orsheet), 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 subordinate to the Notes or any Guarantor’s Guarantee of the Notes, ) that are (i) assumed by the transferee of any such assets (or pursuant to 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 customary novation agreement that releases the Company or a such Restricted Subsidiary);
Subsidiary from further liability or, in the case of the sale of Capital Stock, that are assumed by the transferee by operation of law and (By) any securities, notes or other obligations or assets received by the Company or a such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are promptly (subject to ordinary settlement periods) converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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) $400.0 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 Subsidiaryconversion), 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) . Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or a the applicable Restricted Subsidiary, at its option, Subsidiary may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1a) to repay, redeem repay or repurchase:
(A) Obligations in respect of Senior Indebtedness; or
(B) Obligations in respect of repurchase Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Obligations owed to of the Company (and to correspondingly reduce commitments with respect thereto in the case of revolving credit borrowings), (b) to acquire all or substantially all of the assets of, or a Restricted Subsidiary; or
majority of the Voting Stock of, another Person (2) to make (a) an Investment in any one or more businessesbusiness unit or division of such Person); provided that the primary business of such Investment in any business Person (or unit or division) is in the form a Permitted Business, (c) to fund obligations of the acquisition of Capital Stock and results in the Company or any Restricted Subsidiary owning an amount of under the Capital Stock of such business such that it constitutes Partnership Parks Agreements or continues to constitute a Restricted Subsidiary, (b) capital expenditures, (c) other expenditures made with respect to Oil and Gas Propertiesthe Subordinated Indemnity Agreement, (d) acquisitions to acquire Capital Stock of a Restricted Subsidiary of the Company held by Persons other than the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or Subsidiary, (e) acquisitions by the Company to make a capital expenditure or any Restricted Subsidiary of (f) to acquire other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) long-term assets that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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) Permitted Business. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantsuch Net Proceeds, the Company and its or such Restricted Subsidiaries Subsidiary may temporarily reduce Indebtedness, revolving credit borrowings or otherwise use invest such Applicable Net Proceeds in any manner that is not prohibited by the this Indenture.
(d) The amount equal to the Applicable . Any Net Proceeds from Asset Sales that are not applied or invested or applied as provided and within in the time period set forth in Section 4.10(b) first sentence of this paragraph will be deemed to constitute “"Excess Proceeds”. ." When the aggregate amount of Excess Proceeds exceeds $50.0 20.0 million, the Company will be required to make an offer to all Holders and, at the option of Notes and all holders of other Indebtedness of the Company, to any holders of any Indebtedness Company that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redemptions with the proceeds of sales of assets (“Pari Passu Indebtedness” and such offer, an “"Asset Sale Offer”), ") to purchase the maximum aggregate principal amount of the Notes and such Pari Passu other pari passu Indebtedness that is in an amount equal to at least $2,000, or an integral multiple of $1,000 in excess of $2,000, the Company that may be purchased out of the Excess Proceeds at an Proceeds. The offer price, price in the case of the Notes, in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other priceinterest thereon, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to the date fixed for the closing of such offer, repurchase and will be payable in accordance with the procedures set forth in Section 3.09 (or, in respect cash. If any Excess Proceeds remain after consummation of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). The Company will commence an Asset Sale 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 such Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in for any manner purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the Pari Passu and such other Indebtedness surrendered in an tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, will Trustee shall select the Notes to be purchased in the manner described under Section 3.02 and the Company will select such Pari Passu other 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 denominationbasis. 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 shall 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 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 such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer or Advance Offerzero. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenturecovenant, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in under this Indenture covenant by virtue thereof.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1a) the Company (or such a Restricted Subsidiary, as the case may be, ) receives consideration (including by way of relief from, or by any other Person assuming responsibility responsibilities for, any liabilities, contingent or otherwise, in connection with such ) at the time of the Asset Sale) Sale at least equal to the fair market value Fair Market Value (measured at as of the time date of contractually agreeing the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2b) except in the case of a Permitted Asset Swap, at least 75% of the aggregate consideration for such received in the Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), received Sale by the Company or a Restricted SubsidiarySubsidiary and all other Asset Sales since the Escrow Release Date, as the case may beon a cumulative basis, is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(A1) any liabilities (liabilities, as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto or, if incurred or accrued subsequent to the date of such consolidated 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 Guarantor’s Guarantee of the Notes, Note Guarantee) that are (i) assumed or novated by the transferee of any such assets (or a third party in connection with such transfer) or (ii) that are otherwise cancelled cancelled, forgiven or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or a Restricted Subsidiary)transfer;
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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) $400.0 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
(F2) with respect to any Asset Sale of Oil oil and Gas Properties disposed of natural gas properties by the Company or any Restricted Subsidiary in which where the Company or any such Restricted Subsidiary retains an interestinterest in such property, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties properties and activities related thereto agreed to be assumed by 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 (5), not to exceed an amount equal to the greater of (x) $35.0 million and (y)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.
(bc) Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company (or a any Restricted Subsidiary, at its option, ) may apply an amount equal to such Net Proceeds (at its option to any combination of the “Applicable Proceeds”):following:
(1) to repay, repurchase or redeem or repurchase:
(A) Obligations in respect of Senior Indebtedness; or
(B) Obligations in respect of any Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Obligations owed to the Company or a Restricted Subsidiary; orSubsidiary of the Company, other than (i) Indebtedness of 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 make (a) an Investment in acquire all or substantially all of the assets, or any Capital Stock, of one or more businesses; provided that such Investment in any business is other Persons primarily engaged in the form of the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock and results Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company Company’s 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 Subsidiaries’ Oil and Gas Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clausesBusiness; or
(a4) (d) and this clause (e), either (i) to acquire other assets that are or will be not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business or (ii) that replace, in whole or in part, the properties or assets that are the subject Business. The requirement of such Asset Sale; provided that in the case of this clause (2)) or (4) of this Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, a binding commitment will be treated as a permitted application of the Applicable Proceeds from the date of such commitment so long as acquisition or expenditure referred to therein is entered into by the Company or a any of its Restricted Subsidiary enters into Subsidiaries within the time period specified in the preceding paragraph and such commitment Net Proceeds are subsequently applied in accordance with the good faith expectation that such Applicable Proceeds will be applied to satisfy such commitment contract within 180 days of following the date such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment agreement is 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) entered into. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantNet Proceeds, the Company and its (or any Restricted Subsidiaries Subsidiary) may temporarily reduce Indebtedness, or otherwise use such Applicable invest the Net Proceeds in any manner that is not prohibited by the this Indenture.
(d) . The amount equal to the Applicable Net Proceeds from Asset Sales that are not applied or invested or applied as provided and within the time period set forth in this Section 4.10(b4.10(c) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 35.0 million, within ten business days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders and, at the option of the Company, to any Notes and all holders of any other Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offercontaining provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, an “Asset Sale Offer”)prepay or redeem with the proceeds of sales of assets to purchase, to purchase prepay or redeem, on a pro rata basis, the maximum aggregate principal amount of the Notes and such Pari Passu other pari passu Indebtedness that is (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in an amount equal to at least $2,000, or an integral multiple of $1,000 in excess of $2,000, connection therewith) that may be purchased purchased, prepaid or redeemed 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, 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 provided 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). The Company will commence an Asset Sale 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 ProceduresProceeds. The Company may satisfy the foregoing obligation obligations with respect to any Applicable Net Proceeds from an Asset Sale by making an offer to purchase Notes Asset Sale Offer with respect to such Net Proceeds or equivalent amount prior to the amount of time period that may be required by this Indenture with respect to all or a part of the available Applicable 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 Applicable Proceeds in advance of being required to do so by this Indenture (the an “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 The offer price in any Asset Sale Offer is less than will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, 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, and will be payable in cash. If any Excess Proceeds (or in the case of an Advance Offer, the Advance Portion)) remain after consummation of an Asset Sale Offer, the Company and its or any Restricted Subsidiaries Subsidiary may use any remaining those Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in for any manner purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the Pari Passu Indebtedness surrendered tendered in an 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, in accordance with the Applicable Procedures, Trustee 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 or by lot (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), based on the accreted value or principal amount of the Notes or amounts tendered (with such Pari Passu Indebtedness tendered with adjustments as necessary may be deemed appropriate by the Trustee so that no only Notes in minimum denominations of $2,000, or Pari Passu Indebtedness an integral multiple of $1,000 in excess thereof, will be repurchased in part in an unauthorized denominationpurchased). Upon completion of any such each Asset Sale Offer (or Advance 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 Indentureat zero. An Asset Sale Offer or Advance Offer may be made at 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 such those laws or and regulations are applicable in connection with the each 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 the provisions of Section 3.09 or this IndentureSection 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to under Section 3.09 or this Section 4.10 may be waived or modified with the written consent by virtue of the Holders of a majority in principal amount of the then outstanding Notessuch compliance.
Appears in 1 contract
Sources: Indenture (Penn Virginia Corp)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1i) the Company (or such its Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such the Asset Sale) Sale at least equal to the fair market value Fair Market Value (measured at determined, for purposes of this clause (i), by the time Company or, in the case of contractually agreeing to such Asset Saleany asset(s) valued in excess of $750.0 million, by the Board of Directors of the Company) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2ii) except in the case of a Permitted Asset Swap, at least 75% of the consideration for such received in the Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), received Sale by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(A) any liabilities (liabilities, as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto or, if incurred or accrued subsequent to the date of such consolidated 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 Guarantor’s Guarantee of and the Notes, that are Note Guarantees) (i) that are assumed by the transferee of any such assets (pursuant to an agreement that releases the Company or a third party in connection with such transfer) Restricted Subsidiary from further liability or (ii) otherwise cancelled or terminated that are discharged by the transferee in connection with the a transaction with such transferee (other than intercompany debt owed pursuant to which neither the Company or a nor any Restricted Subsidiary)Subsidiary has any liability following such Asset Sale;
(B) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalentswithin 180 days after the consummation of the applicable Asset Sale, 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 Salereceived in that conversion;
(C) any Designated Non-Cash Noncash Consideration received by the Company or a Restricted Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value that, when taken together with all other Designated Non-Cash Noncash Consideration previously received pursuant to this clause (C) that is at that time and then outstanding, does not to exceed the greater of (i) $400.0 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, Noncash Consideration (with the fair market value Fair Market Value of each item of Designated Non-Cash Noncash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and without giving effect to subsequent changes in value;) the greater of $800.0 million or 3.0% of Consolidated Total Assets; and
(D) Indebtedness of any Restricted Subsidiary that ceases future payments to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt made in cash or Cash Equivalents 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company form of licensing, royalty, earnout or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee Milestone Payment (or an Affiliate thereofsimilar deferred cash payments).
(b) Within 365 450 days after the receipt of any Net Proceeds of any from an Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or a the applicable Restricted Subsidiary, at its option, Subsidiary may apply an amount equal to those Net Proceeds:
(i) to repay (x) Indebtedness and other Obligations under the Credit Agreement and, if the Indebtedness repaid under the Credit Agreement is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto, (y) Indebtedness and other Obligations under the Notes or any Pari Passu Indebtedness (other than the Credit Agreement) and, if the Pari Passu Indebtedness being repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto (provided that if such Net Proceeds are applied to repay such Pari Passu Indebtedness under this clause (y), the “Applicable Proceeds”):Company shall equally and ratably reduce obligations under the Notes in accordance with Section 3.7 hereof, through privately negotiated transactions or open market purchases (in each case, provided that such purchases are at or above 100% of the principal amount thereof), or by making an offer (in accordance with Section 4.14(c)) to all Holders to purchase, at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, the pro rata principal amount of Notes) or (z) other Indebtedness of a Non-Guarantor Subsidiary, so long as the relevant assets were assets of such Subsidiary;
(1ii) to repayacquire all or substantially all of the assets of, redeem or repurchase:a majority of the Voting Stock of, another Permitted Business or the minority interest in any Permitted Business;
(Aiii) Obligations to make payments with respect to the acquisition or license of intellectual property rights that are used in respect of Senior Indebtednessa Permitted Business;
(iv) to make a capital expenditure in or that is useful in a Permitted Business;
(v) to retire Notes (x) pursuant to Section 3.7 hereof, (y) through privately negotiated transactions or open market purchases or (z) by making an offer to purchase Notes in accordance with Section 4.14(c); or
(Bvi) Obligations in respect of Indebtedness of a Restricted Subsidiary that is not a Guarantor, to acquire other assets (other than Obligations owed to the Company or a Restricted Subsidiary; or
(2) to make (a) an Investment in any one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock cash 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (iCash Equivalents) that are or will be used or useful in the Oil and Gas Business or (ii) that replace, in whole or in part, the properties or assets that are the subject of such Asset Salea Permitted Business; provided that in the case of this clause (2), 1) a binding commitment will to apply any Net Proceeds from an Asset Sale as set forth in clauses (ii), (iii), (iv) or (vi) of this Section 4.14(b) shall be treated as a permitted application of the Applicable Net Proceeds from the date of such commitment so long as the Company or a such Restricted Subsidiary enters into such commitment with the good faith expectation that such Applicable Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt end of such Applicable Proceeds); provided450-day period (an “Acceptable Commitment”) and, further, that if in the event any such commitment Acceptable Commitment is later cancelled or terminated for any reason before such Applicable the Net Proceeds are appliedapplied in connection therewith, then the Company or such Restricted Subsidiary shall be permitted to apply the Net Proceeds in any manner set forth above before the expiration of such 180-day period and, in the event the Company or such Restricted Subsidiary fails to do so, then such Applicable Net Proceeds will shall constitute Excess Proceeds and (2) the Company may elect to deem certain expenditures that would otherwise be permissible reinvestments but that occurred prior to the receipt of the applicable Net Proceeds as defined belowhaving been reinvested in accordance with the provisions of this Section 4.14, but only to the extent such deemed expenditure shall have been made no earlier than the earlier of the execution of a definitive agreement with respect to such Asset Sale or the consummation thereof. Notwithstanding anything in this Section 4.14 to the contrary, the Company shall not be required to apply any amount that would otherwise be required to be applied pursuant to this Section 4.14 to the extent that the Asset Sale (x) is consummated by any Foreign Subsidiary for so long as the Company determines in good faith that the repatriation to the Company of any such amount would be prohibited or delayed (beyond the time period during which such application is otherwise required to be made pursuant hereto) under any requirement of law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or could reasonably be expected to result in, a material risk of personal or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (including on account of financial assistance, corporate benefit, thin capitalization, capital maintenance or similar considerations); or
it being understood and agreed that (3i) solely within 365 days following the event giving rise to the relevant Net Proceeds, the Company shall take all commercially reasonable actions required by applicable requirements of law to permit such repatriation and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal or criminal liability for the Persons described above, in either case, and (ii) if such repatriation is permitted or would no longer so conflict, within 365 days following the event giving rise to the relevant Net Proceeds, the relevant Foreign Subsidiary will promptly repatriate the relevant Net Proceeds, and the repatriated Net Proceeds will be promptly (and in any combination event not later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against such Net Proceeds, as a result thereof, in each case by the Company or the Company’s subsidiaries, and any Affiliates or indirect or direct equity owners of the foregoing.
) as required above, or (cy) Pending generates Net Proceeds that are received by any joint venture for so long as the final application Company determines in good faith that the distribution of such Net Proceeds would be prohibited under the organizational documents (or any relevant shareholders’ or similar agreement) governing such joint venture; it being understood that if the relevant prohibition ceases to exist within the 365-day period following the event giving rise to the relevant Net Proceeds, the relevant joint venture will promptly distribute the Net Proceeds, as the case may be, and the Net Proceeds, as the case may be, will be promptly (and in any event not later than ten Business Days after such distribution) applied (net of additional taxes payable or reserved against as a result thereof) as set forth above. In addition, if the Company determines in good faith that the repatriation (or other intercompany distribution) to the Company of any amounts required to be applied as set forth above would result in material and adverse tax consequences for the Company or any of its subsidiaries, Affiliates or indirect or direct equity owners, taking into account any foreign tax credit or benefit actually realized in connection with such repatriation (such amount, a “Restricted Amount”), as determined by the Company in good faith, the amount the Company shall be required to apply as set forth above shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of any Applicable Net Proceeds from the relevant Foreign Subsidiary would no longer have a material and adverse tax consequence within the 365-day period following the event giving rise to the Net Proceeds, an amount equal to the Net Proceeds not previously applied pursuant to this covenantSection 4.14 shall be so applied. Notwithstanding Sections 4.14(a) and 4.14(b), the Company and its Restricted Subsidiaries will not be required to apply an amount equal to any Net Proceeds in accordance with this Section 4.14 except to the extent that the aggregate Net Proceeds from all Asset Sales which are not applied in accordance with this Section 4.14 in any calendar year exceeds the greater of $200.0 million or 1.0% of Consolidated Total Assets at the time of receipt of such Net Proceeds (any amount less than such threshold, “Retained Asset Sale Proceeds”). Pending application of an amount equal to Net Proceeds pursuant to this Section 4.14, the Company or a Restricted Subsidiary may temporarily reduce Indebtedness, revolving credit borrowings or otherwise use such Applicable invest the Net Proceeds in any manner that is not prohibited by the this Indenture.
(dc) The amount equal to the Applicable Any Net Proceeds from Asset Sales that are not applied or invested or applied as provided and within the time period set forth in Section 4.10(b4.14(b) will be deemed to hereof shall constitute “Excess Proceeds”. .” When the aggregate amount of Excess Proceeds in any calendar year exceeds the greater of $50.0 million200.0 million or 1.0% of Consolidated Total Assets, the Company will shall make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), ) to all Holders of Notes and all holders of other Pari Passu Indebtedness to purchase the maximum aggregate principal amount of the Notes and such other Pari Passu Indebtedness that is in an amount equal to at least $2,000, or an integral multiple of $1,000 in excess of $2,000, that may be purchased out of the amount of such Excess Proceeds at an Proceeds. The offer price, price in the case of the Notes, in cash in an amount any Asset Sale Offer shall be equal to 100% of the principal amount thereof (or accreted value thereof, 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 provided for by the terms of such Pari Passu Indebtedness), interest to, but excludingnot including, the date fixed for the closing of such offerpurchase, and shall be payable in accordance with the procedures set forth in Section 3.09 (or, in respect cash. If any Excess Proceeds remain after consummation of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). The Company will commence an Asset Sale 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 (“Declined 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 PortionProceeds”) 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 the amount of such Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in for any manner purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the and other Pari Passu Indebtedness surrendered in an tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, will Company shall select the Notes to be purchased in the manner described under Section 3.02 and the Company will select such other 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 denominationbasis. Upon completion of any such each 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 shall 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 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)zero.
(e) [Reserved].
(fd) 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 such those laws or and regulations are applicable in connection with the each 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 the Asset Sale provisions of this Indenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations described in under the Asset Sale provisions of this Indenture by virtue thereofof such compliance.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Asset Sales. (ai) The Company will not, and will not permit any Restricted Subsidiary to, consummate an Asset Sale, unless:
(1) No later than 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, is in the form of cash or Cash Equivalents; provided that each of the fifth Business Day following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent 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 receipt by the Company) of the Company or any Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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) $400.0 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt Loan Party of any Net Proceeds (excluding any such Net Proceeds constituting recurring volume- or sales-based payments made in the ordinary course of business) from one or more Asset Sales constituting a Permitted Product Transaction in excess of $40,000,0002,500,000 in the aggregate in any Asset Sale (Fiscal Year for all such Permitted Product Transactions, Company shall prepay the Term Loan as may be extended pursuant to clause (2set forth in Section 2.11(a) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply in an aggregate amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or repurchase:in excess of $40,000,000. 2,500,000.
(A) Obligations On the same Business Day of the receipt by any Loan Party of proceeds from a VitaCare Sale, Company shall prepay the principal amount of the Term Loans as set forth in respect Section 2.11(a)(ii) in an amount equal to (1) the first $120,000,000 of Senior IndebtednessNet Proceeds from such sale and (2) all Net Proceeds in excess of $135,000,000 from such sale ; orand[Reserved]; and
(B) Obligations No later than the fifth Business Day following the date of receipt by any Loan Party of any Net Proceeds from any other Asset Sales (which, for the avoidance of doubt, shall not include the VitaCare Sale)Asset Sales that do not constitute Permitted Product Transactions in respect excess of Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Obligations owed to $5,000,0002,500,000 in the Company or a Restricted Subsidiary; or
(2) to make (a) an Investment aggregate in any one or more businesses; provided Fiscal Year 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 do not constitute a Restricted SubsidiaryPermitted Product Transaction, (bCompany shall prepay the Term Loans as set forth in Section 2.11(a)(i) capital expendituresin an aggregate amount equal to such Net Proceeds in excess of $5,000,0002,500,000 in such Fiscal Year; provided, (c) other expenditures made with respect to Oil and Gas Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas Business or (ii) that replace, in whole or in part, the properties or assets that are the subject of such Asset Sale; provided that solely in the case of this clause (2B), a binding commitment will be treated as a permitted application of the Applicable Proceeds from the date of such commitment so long as (i) no Default or Event of Default shall have occurred and be continuing, (ii) Company has delivered Administrative Agent prior written notice of Company's intention to apply such monies (the Company “Reinvestment Amounts”) to reinvest in or to the costs of purchase of other assets used or useful in the business of the Loan Parties including capital expenditures, (iii) the monies are held in a Restricted Subsidiary enters into Deposit Account subject to a Control Agreement, and (iv) the Loan Parties complete such commitment with the good faith expectation that such Applicable Proceeds will be applied to satisfy such commitment reinvestment or purchase within 180 days of such commitment (or, if later, 365 days after the initial receipt of such Applicable Proceeds); providedmonies, furtherthe Loan Parties shall have the option to apply such monies to the reinvestment in or the costs of purchase of other assets used or useful in the business of the Loan Parties (including capital expenditures) unless and to the extent that such applicable period shall have expired without such reinvestment or purchase being made or completed, that if in which case, any such commitment is later cancelled amounts not so used to reinvest 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 Applicable Proceeds pursuant purchase shall be paid to this covenant, the Company Administrative Agent and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 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 consents2.11(a)(i).
(eiii) [Reserved].
(fNothing contained in this Section 2.10(a) The Company will comply with the requirements shall permit Borrower or any of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder its Subsidiaries to the extent such laws sell or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer or Advance Offer. To the extent that the provisions otherwise dispose of any securities laws or regulations conflict assets other than in accordance with the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in this Indenture by virtue thereofSection 6.9.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1) the Company (or such a Restricted Subsidiary, as the case may be, ) receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilitiesliability, contingent or otherwise, in connection with such Asset Sale) at the time of the Asset Sale at least equal to the fair market value (as determined by the Company in good faith measured at as of the time date of contractually agreeing the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the aggregate 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 and its Restricted Subsidiary, as Subsidiaries in the case may be, Asset Sale is in the form of cash cash, Cash Equivalents or Cash Equivalents; provided that Replacement Assets or any combination of the foregoing. For purposes of this provision, each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(Aa) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto orfootnotes thereto, or as would be shown on such balance sheet or footnotes if such liability was 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, such Subsidiary (other than contingent liabilities and liabilities that are by their terms contractually subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, Note Guarantee) that are (i) assumed or forgiven by the transferee of any such assets (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 pursuant to an agreement that releases the Company or a Restricted Subsidiary)such Subsidiary from further liability, or that are otherwise released or assumed;
(Bb) properties and capital assets to be used by the Company or any Restricted Subsidiary in a Permitted Business, or Capital Stock of a Person engaged in a Permitted Business that becomes a Restricted Subsidiary of the Company;
(c) any securities, notes or other obligations or assets received by the Company or a any Restricted Subsidiary from such transferee or in connection with such that are, within 210 days after the Asset Sale (including earnouts and similar obligations) that are Sale, converted by the Company or a Restricted such Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;received in that conversion; and
(Cd) any Designated Non-Cash Consideration received by the Company or a any 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 (Cc) that is at that the time outstanding, not to exceed the greater of (ix) $400.0 100.0 million and (iiy) 5.04.5% of Adjusted the Company’s 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 measured at the time received and, in either case, and 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days (540 days in the case of an Event of Loss) after the receipt of any Net Proceeds of any from an Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or any Restricted Subsidiary 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, repurchase or otherwise retire any Senior Debt of the Company or any of its Subsidiaries (and correspondingly reduce commitments with respect thereto, in the case of the Existing ABL Facility, any secured Indebtedness incurred in respect of working capital assets or unsecured Indebtedness, only to the extent required by the terms thereof), including the Existing ABL Facility Notes and the Existing Notes;
(2) to acquire all or substantially all of the properties or assets of a Person primarily engaged in a Permitted Business if, after giving effect to such acquisition, such Person is or becomes a Restricted Subsidiary of the Company;
(3) to acquire any Capital Stock of a Person operating a Permitted Business if, after giving effect to such acquisition, such Person operating a Permitted Business is or becomes a Restricted Subsidiary of the Company;
(4) to make capital expenditures in respect of the Company’s or its Restricted Subsidiaries’ Permitted Business or make an Investment in Replacement Assets; or
(5) to acquire other assets that are used or useful in a Permitted Business or make an Investment in assets that will be used or useful in the Company’s business. The requirement of clauses (2) through (5) of this Section 4.10(b) shall be deemed to be satisfied if a bona fide binding contract committing to make the acquisition, purchase, Investment or expenditure referred to therein is entered into by the Company (or any Restricted Subsidiary, at its option, may apply ) within the time period specified in this Section 4.10(b) and an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or repurchase:
(A) Obligations is subsequently applied 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; or
(2) to make (a) an Investment in any one or more businesses; provided that accordance with 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable Proceeds from contract within six months following 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment agreement is 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) entered into. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantsuch Net Proceeds, the Company and its or any Restricted Subsidiaries Subsidiary may temporarily reduce Indebtedness, or otherwise use utilize such Applicable Net Proceeds in any manner that is not prohibited by the this Indenture.
(dc) The amount equal to the Applicable Any Net Proceeds from Asset Sales that are not applied or invested or applied as provided and within the time period set forth in Section 4.10(b) hereof will be deemed to constitute “Excess Proceeds”. When ” (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) shall be deemed to have been invested whether or not such offer is accepted).
(d) Within 10 Business Days after the aggregate amount of Excess Proceeds exceeds $50.0 million75.0 million (or, at the Company’s option, on any earlier date or for any lesser amount), the Company will make an offer to all Holders and, at (the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”)) to all Holders of Notes, and all holders of other Pari Passu Debt containing provisions similar to those set forth in this Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets, to purchase purchase, prepay or redeem the maximum aggregate principal amount of Notes (or any series or both series, at the Notes sole election of the Company) and such other Pari Passu Debt (plus all accrued interest on the Indebtedness that is and the amount of all fees and expenses, including premiums, incurred in an amount equal to at least $2,000, or an integral multiple of $1,000 in excess of $2,000, connection therewith) that may be purchased purchased, prepaid or redeemed out of the Excess Proceeds at an Proceeds. The offer price, price in the case of the Notes, in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof (or accreted value thereof, 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 provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to the date fixed for of settlement, subject to the closing right of such offerHolders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the date of settlement, and will be payable in accordance with cash. If any Excess Proceeds remain after the procedures set forth in Section 3.09 (or, in respect consummation of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). The Company will commence an Asset Sale 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 or any Restricted Subsidiaries Subsidiary may use any remaining those Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in for any manner purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the and other Pari Passu Indebtedness surrendered in an Debt tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, Trustee will select the Notes to be purchased in the manner described under Section 3.02 and the Company will trustee or agent for such other Pari Passu Debt shall select such Pari Passu Indebtedness Debt 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 (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 accreted value or principal amount of the Notes or Trustee, a method that most nearly approximates pro rata selection) but with such Pari Passu Indebtedness tendered with adjustments as necessary so that no Notes or other Pari Passu Indebtedness will be repurchased Debt is purchased in part in an unauthorized authorized denomination. Upon completion of any such each 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 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)zero.
(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 such those laws or and regulations are applicable in connection with the each 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 the provisions of Section 3.09 hereof or this IndentureSection 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in under Section 3.09 hereof or this Indenture Section 4.10 by virtue thereofof such compliance.
(gf) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the If Holders of a majority not less than 90% in aggregate principal amount of the then outstanding NotesNotes of any series validly tender and do not withdraw such Notes in connection with an Asset Sale Offer and the Company purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company will have the right, upon not less than 10 days’ nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Asset Sale Offer described above, to redeem all of the Notes of that series that remain outstanding following such purchase at a redemption price equal to 100% of aggregate the principal amount of the Notes of that series redeemed plus accrued and unpaid interest, if any, thereon on the date of redemption, subject to the right of holders of record on relevant record dates to receive interest due on an interest payment date.
Appears in 1 contract
Sources: Indenture (CVR Energy Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1) the Company or such the applicable 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 ) at or prior to the time of such Asset Sale) Sale at least equal to the fair market value (measured at as of the time date of contractually agreeing the definitive agreement with respect to such Asset Sale) of the assets sold or otherwise disposed of; andof (as determined in good faith by the Company’s Board of Directors if the fair market value is $10.0 million or more);
(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 the Restricted Subsidiary, as the case may be, is from such Asset Sale shall be in the form of cash or Cash Equivalents; provided that Equivalents and shall be received at or prior to the time of such disposition. For purposes of this clause (2), each of the following will shall be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(Ai) any liabilities (liabilities, as shown on reflected in 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 Companythereto) of the Company or any Restricted SubsidiarySubsidiary (or would be reflected on such consolidated balance sheet (or in the notes thereto) as of the date of such Asset Sale), other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Note Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (or a third party in connection with such transfer) or (ii) otherwise cancelled or terminated in connection with the transaction with such transferee (any Guarantees of Indebtedness of Persons other than intercompany debt owed to the Company or a any Restricted Subsidiary), in each case, that are assumed by the Person acquiring such assets to the extent that the Company and its Restricted Subsidiaries have no further liability with respect to such liabilities;
(B) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 270 days following the closing of such Asset Sale;after receipt; and
(C) any Designated Non-Cash Consideration received by the Company or a its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is at that time outstanding, in the aggregate, not to exceed the greater of (i) $400.0 25.0 million and (ii) 5.03.0% of Adjusted Consolidated Net Tangible Total Assets of the Company at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value 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 measured at the time received and, in either case, and without giving effect to subsequent changes in value;
(D3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(A) to (x) repay Indebtedness of the Company and its Restricted Subsidiaries under any Restricted Subsidiary that ceases Credit Facility and in the case of any such Indebtedness under any revolving credit facility effect a permanent reduction in the availability under such revolving credit facility (provided, however, that, if there shall not be any term loan indebtedness outstanding under any Credit Facility, in the case of such Indebtedness under any revolving credit facility such prepayment shall not be required to be effect a permanent reduction in the availability under such revolving credit facility), (y) repay or reduce Indebtedness of a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company that does not guarantee the Notes or a Restricted Subsidiary), to (z) repay indebtedness secured in whole or in part by the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness assets or Capital Stock sold in connection with such Asset Sale;
(EB) any Investment, to acquire or make an investment in properties or assets that replace the properties and assets that were the subject of such Asset Sale or make an investment in properties or assets (including Capital Stock) that will be used or are useful, assets, property or capital or other expenditure in the good faith judgment of the kind referred Board of Directors of the Company, in the business of the Company and its Restricted Subsidiaries as they are engaged in on the Issue Date or in businesses reasonably related, incidental, ancillary or complimentary thereto (“Replacement Assets”) or to in Section 4.10(b)(2); and
(F) make capital expenditures with respect to any Asset Sale properties or assets that are used in or will be used in the business of Oil and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Subsidiarythat, (b) capital expenditures, (c) other expenditures made with respect to Oil and Gas Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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 (2B), a binding commitment will within 365 days of the date of the receipt of such Net Cash Proceeds shall be treated as a permitted permanent application of the Applicable Net Cash Proceeds from the date of such commitment so long as the Company or a such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Applicable Net Cash Proceeds will be applied to satisfy such commitment within 180 days of such commitment (oran “Acceptable Commitment”) and, if later, 365 days after in the receipt of such Applicable Proceeds); provided, further, event that if any such commitment Acceptable Commitment is later cancelled or terminated for any reason before such Applicable Net Cash Proceeds are applied, the Company or such other Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided further that if any Second Commitment is later cancelled or terminated for any reason before such Net Cash Proceeds are applied, then such Applicable Net Cash Proceeds will shall constitute Excess part of the Net Proceeds (Offer Amount if not otherwise applied as defined below)provided above within 365 days of the receipt of such Net Cash Proceeds; or
(3C) any a combination of prepayment and investment permitted by the foregoingforegoing clauses (3)(A) and (3)(B).
(cb) Pending the final application of the amount of Subject to Section 4.10(c), if any Applicable Net Cash Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner have not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or been applied as provided in clauses (3)(A), (3)(B) and (3)(C) of Section 4.10(a) within the applicable time period set forth in Section 4.10(b) will or the last provision of this sentence, such Net Cash Proceeds shall be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, applied by the Company will or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) to all Holders and, at to the option of extent required by the Company, to any holders terms of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, if less), plus accrued and unpaid interest, if any (or, in respect holders of such Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 60 days following the date that triggered the Company’s obligation to make such other priceNet Proceeds Offer, if any, as may be provided for by the terms from all Holders (and holders of any such Pari Passu Indebtedness)) on a pro rata basis based upon the respective outstanding aggregate principal amounts (or accreted value, to, but excludingas applicable) of the Notes and Pari Passu Indebtedness on the date the Net Proceeds Offer is made, 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). The Company will commence an Asset Sale 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 maximum amount (or accreted value, as applicable) of Notes and such Pari Passu Indebtedness tendered pursuant that may be purchased with the Net Proceeds Offer Amount at a price equal to an Asset Sale Offer is less than 100% of 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 the Notes and/or the and Pari Passu Indebtedness surrendered to be purchased, plus accrued and unpaid interest thereon, if any, to but excluding the date of purchase; provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10.
(c) The Company may make a Net Proceeds Offer exceeds at any time and from time to time in advance of its obligation to make a Net Proceeds Offer pursuant to Section 4.10(b). The Company may also defer any Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer amount equal to or in excess of $25.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer amount, and not just the amount in excess of $25.0 million, shall be applied as required pursuant to this paragraph). Upon completion of each Net Proceeds Offer, the amount of Excess unutilized Net Proceeds Offer amount will be reset at zero.
(or d) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in the case a transaction permitted under Section 5.01, which transaction does not constitute a Change of an Advance OfferControl, the Advance PortionSurviving Entity shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(e) Notwithstanding Sections 4.10(a) and 4.10(b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(e) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and 4.10(b).
(f) Each Net Proceeds Offer will be sent to the record Holders as shown on the register of Holders within 25 days following the date triggering the Company obligation to make such Net Proceeds Offer, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $2,000 in exchange for cash. To the extent Holders properly tender Notes in an amount exceeding the pro rata portion of the Net Proceeds Offer Amount applicable to the Notes, the tendered Notes will be purchased in accordance with the Applicable Procedures if the Notes are in global form or, if there are no such 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 amounts tendered). A Net Proceeds Offer shall remain open for a period of the Notes at least 20 Business Days or such Pari Passu Indebtedness tendered with adjustments longer period 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 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)required by law.
(e) [Reserved].
(fg) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or and regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer or Advance a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this IndentureSection 4.10, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations described in under this Indenture Section 4.10 by virtue thereof.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Indenture (Carriage Services Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to: (i) sell, consummate lease, convey or otherwise dispose of any assets or rights (including by way of a sale-and-leaseback) other than sales of inventory in the ordinary course of business (provided that the sale, lease, conveyance or other distribution of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, shall be governed by the provisions of Sections 4.14 and 5.01 hereof and not by the last paragraph of this section), or (ii) with respect to the Company, sell Equity Interests in any of its Subsidiaries, or (iii) with respect to the Company's Restricted Subsidiaries, issue Equity Interests (each of the foregoing, an "Asset Sale"), unless:
unless (1x) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at evidenced by a resolution of the time Board of contractually agreeing Directors set forth in an Officers' Certificate delivered to such Asset Salethe Trustee) of the assets sold or otherwise disposed of; and
of and (2y) 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 therefor by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that each of other Qualified Proceeds. Notwithstanding the foregoing, the following will shall not be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
Asset Sales: (Ai) any liabilities single transaction or series of related transactions that (as shown on the Company’s a) involves assets having a fair market value of less than $2.0 million or any Restricted Subsidiary’s most recent balance sheet or (b) results in the notes thereto or, if incurred or accrued subsequent net proceeds to the date Company and its Restricted Subsidiaries of such balance sheetless than $2.0 million, such liabilities that would have been reflected on the Company’s (ii) a transfer of assets between 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 among the Company or and any Restricted Subsidiary, other than liabilities that are (iii) an issuance of Equity Interests by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 Restricted Subsidiary to the Company or a to another Wholly Owned Restricted Subsidiary);
, (Biv) any securitiesthe sale, notes lease, conveyance or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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) $400.0 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 disposition 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 and Gas Properties disposed of Receivable Program Assets by the Company or any Restricted Subsidiary in which connection with a Receivables Program, (v) the sale, lease, conveyance or other disposition of any inventory, receivables or other current assets by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (vi) the granting of a ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, (▇▇) the licensing by the Company or any Restricted Subsidiary retains an interestof intellectual property in the ordinary course of business or on commercially reasonable terms, (vii) the costs sale, lease, conveyance or other disposition of obsolete or worn out equipment or equipment no longer useful in the Company's business, and expenses related to (viii) the exploration, development, completion making or production liquidating of such Oil and Gas Properties and activities related thereto agreed to be assumed any Restricted Payment or Permitted Investment that is permitted by the transferee (or an Affiliate thereof).
(b) Section 4.07 hereof. Within 365 days after the receipt of any Net Proceeds of from any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company (or a such Restricted Subsidiary) may apply such Net Proceeds from such Asset Sale, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make either (a) an Investment in any one or more businesses; provided that to repay Permitted Bank Debt, and if such Investment in any business Permitted Bank Debt 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 revolving debt, to constitute effect a Restricted Subsidiarycorresponding commitment reduction thereunder, (b) capital expendituresto acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business, (c) other expenditures made with respect to Oil and Gas Propertiesmake a capital expenditure, or (d) acquisitions by the Company or to acquire any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) long-term assets that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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) Permitted Business. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantsuch Net Proceeds, the Company and its (or such Restricted Subsidiaries Subsidiary) may temporarily reduce Indebtedness, revolving credit borrowings or otherwise use invest such Applicable Net Proceeds in any manner that is not prohibited by the this Indenture.
(d) The amount equal to the Applicable . Any Net Proceeds from such Asset Sales Sale that are not finally applied or invested or applied as provided and within in the time period set forth in Section 4.10(b) first sentence of this paragraph will be deemed to constitute “"Excess Proceeds”. When ." Within five days of each date on which the aggregate amount of Excess Proceeds exceeds $50.0 10 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “shall commence a pro rata Asset Sale Offer”), Offer pursuant to Section 3.09 hereof to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, price in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, 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 provided for by the terms of such Pari Passu Indebtedness), to, but excluding, interest to 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). The Company will commence an Asset Sale 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”)hereof. 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)Proceeds, the Company and its Restricted Subsidiaries (or such Subsidiary) 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 deficiency for any purpose not otherwise prohibited under by this Indenture. An Asset Sale Offer or Advance Offer may be made at 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 Upon completion 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 offer to the extent such laws or regulations are applicable in connection with 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 the provisions of this Indenturepurchase, the Company amount of Excess Proceeds will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in this Indenture by virtue thereofbe reset at zero.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Indenture (Amkor Technology Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
: (1i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such the Asset Sale) Sale at least equal to the fair market value (measured at the time of contractually agreeing to such Asset Sale) of the assets disposed of or the Equity Interests of the Restricted Subsidiary issued or sold or otherwise disposed ofof (determined by the Board of Directors of the Company if such fair market value exceeds $5.0 million); and
and (2ii) except in the case of a Permitted Asset Swap, at least 75% of the consideration for such received in the Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), received Sale by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
Equivalents: (Aa) any liabilities (liabilities, as shown on the Company’s or any such Restricted Subsidiary’s most recent 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 such Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, Subsidiary Guarantee) that are (i) assumed by the transferee of any such assets (or a third party in connection with such transfer) or (ii) otherwise cancelled or terminated in connection with by the transaction with holder of such transferee (other than intercompany debt owed to liability and the Company or a such Restricted Subsidiary);
Subsidiary is released from further liability; (Bb) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash EquivalentsEquivalents within 90 days after receipt, 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;
received in that conversion; (Cc) any Designated Non-Cash cash Consideration received by the Company or a any such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash cash Consideration received pursuant to this clause (Cc) that is at that time outstandinghas not been converted to cash, not to exceed the greater of (i) $400.0 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.exceed
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1i) the Company (or such its Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such the Asset Sale) Sale at least equal to the fair market value Fair Market Value (measured at determined, for purposes of this clause (i), by the time Company or, in the case of contractually agreeing to such Asset Saleany asset(s) valued in excess of $750.0 million, by the Board of Directors of the Company) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2ii) except in the case of a Permitted Asset Swap, at least 75% of the consideration for such received in the Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), received Sale by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(A) any liabilities (liabilities, as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto or, if incurred or accrued subsequent to the date of such consolidated 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 Guarantor’s Guarantee of and the Notes, that are Note Guarantees) (i) that are assumed by the transferee of any such assets (pursuant to an agreement that releases the Company or a third party in connection with such transfer) Restricted Subsidiary from further liability or (ii) otherwise cancelled or terminated that are discharged by the transferee in connection with the a transaction with such transferee (other than intercompany debt owed pursuant to which neither the Company or a nor any Restricted Subsidiary)Subsidiary has any liability following such Asset Sale;
(B) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalentswithin 180 days after the consummation of the applicable Asset Sale, 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 Salereceived in that conversion;
(C) any Designated Non-Cash Noncash Consideration received by the Company or a Restricted Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value that, when taken together with all other Designated Non-Cash Noncash Consideration previously received pursuant to this clause (C) that is at that time and then outstanding, does not to exceed the greater of (i) $400.0 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, Noncash Consideration (with the fair market value Fair Market Value of each item of Designated Non-Cash Noncash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and without giving effect to subsequent changes in value;) the greater of $800.0 million or 3.0% of Consolidated Total Assets; and
(D) Indebtedness of any Restricted Subsidiary that ceases future payments to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt made in cash or Cash Equivalents 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company form of licensing, royalty, earnout or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee Milestone Payment (or an Affiliate thereofsimilar deferred cash payments).
(b) Within 365 450 days after the receipt of any Net Proceeds of any from an Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or a the applicable Restricted Subsidiary, at its option, Subsidiary may apply an amount equal to those Net Proceeds:
(i) to repay (x) Indebtedness and other Obligations under the Credit Agreement and, if the Indebtedness repaid under the Credit Agreement is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto, (y) Indebtedness and other Obligations under the Notes or any Pari Passu Indebtedness (other than the Credit Agreement) and, if the Pari Passu Indebtedness being repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto (provided that if such Net Proceeds are applied to repay such Pari Passu Indebtedness under this clause (y), the “Applicable Proceeds”):Company shall equally and ratably reduce obligations under the Notes in accordance with Section 3.7 hereof, through privately negotiated transactions or open market purchases (in each case, provided that such purchases are at or above 100% of the principal amount thereof), or by making an offer (in accordance with Section 4.14(c)) to all Holders to purchase, at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, the pro rata principal amount of Notes) or (z) other Indebtedness of a Non-Guarantor Subsidiary, so long as the relevant assets were assets of such Subsidiary;
(1ii) to repayacquire all or substantially all of the assets of, redeem or repurchase:a majority of the Voting Stock of, another Permitted Business or the minority interest in any Permitted Business;
(Aiii) Obligations to make payments with respect to the acquisition or license of intellectual property rights that are used in respect of Senior Indebtednessa Permitted Business;
(iv) to make a capital expenditure in or that is useful in a Permitted Business;
(v) to retire Notes (x) pursuant to Section 3.7 hereof, (y) through privately negotiated transactions or open market purchases or (z) by making an offer to purchase Notes in accordance with Section 4.14(c); or
(Bvi) Obligations in respect of Indebtedness of a Restricted Subsidiary that is not a Guarantor, to acquire other assets (other than Obligations owed to the Company or a Restricted Subsidiary; or
(2) to make (a) an Investment in any one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock cash 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (iCash Equivalents) that are or will be used or useful in the Oil and Gas Business or (ii) that replace, in whole or in part, the properties or assets that are the subject of such Asset Salea Permitted Business; provided that in the case of this clause (2), 1) a binding commitment will to apply any Net Proceeds from an Asset Sale as set forth in clauses (ii), (iii), (iv) or (vi) of this Section 4.14(b) shall be treated as a permitted application of the Applicable Net Proceeds from the date of such commitment so long as the Company or a such Restricted Subsidiary enters into such commitment with the good faith expectation that such Applicable Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt end of such Applicable Proceeds); provided450-day period (an “Acceptable Commitment”) and, further, that if in the event any such commitment Acceptable Commitment is later cancelled or terminated for any reason before such Applicable the Net Proceeds are appliedapplied in connection therewith, then the Company or such Restricted Subsidiary shall be permitted to apply the Net Proceeds in any manner set forth above before the expiration of such 180-day period and, in the event the Company or such Restricted Subsidiary fails to do so, then such Applicable Net Proceeds will shall constitute Excess Proceeds and (2) the Company may elect to deem certain expenditures that would otherwise be permissible reinvestments but that occurred prior to the receipt of the applicable Net Proceeds as defined belowhaving been reinvested in accordance with the provisions of this Section 4.14, but only to the extent such deemed expenditure shall have been made no earlier than the earlier of the execution of a definitive agreement with respect to such Asset Sale or the consummation thereof. Notwithstanding anything in this Section 4.14 to the contrary, the Company shall not be required to apply any amount that would otherwise be required to be applied pursuant to this Section 4.14 to the extent that the Asset Sale (x) is consummated by any Foreign Subsidiary for so long as the Company determines in good faith that the repatriation to the Company of any such amount would be prohibited or delayed (beyond the time period during which such application is otherwise required to be made pursuant hereto) under any requirement of law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or could reasonably be expected to result in, a material risk of personal or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (including on account of financial assistance, corporate benefit, thin capitalization, capital maintenance or similar considerations); or
it being understood and agreed that (3i) solely within 365 days following the event giving rise to the relevant Net Proceeds, the Company shall take all commercially reasonable actions required by applicable requirements of law to permit such repatriation and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal or criminal liability for the Persons described above, in either case, and (ii) if such repatriation is permitted or would no longer so conflict, within 365 days following the event giving rise to the relevant Net Proceeds, the relevant Foreign Subsidiary will promptly repatriate the relevant Net Proceeds, and the repatriated Net Proceeds will be promptly (and in any combination event not later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against such Net Proceeds, as a result thereof, in each case by the Company or the Company’s Subsidiaries, and any Affiliates or indirect or direct equity owners of the foregoing.
) as required above, or (cy) Pending generates Net Proceeds that are received by any joint venture for so long as the final application Company determines in good faith that the distribution of such Net Proceeds would be prohibited under the organizational documents (or any relevant shareholders’ or similar agreement) governing such joint venture; it being understood that if the relevant prohibition ceases to exist within the 365-day period following the event giving rise to the relevant Net Proceeds, the relevant joint venture will promptly distribute the Net Proceeds, as the case may be, and the Net Proceeds, as the case may be, will be promptly (and in any event not later than ten Business Days after such distribution) applied (net of additional taxes payable or reserved against as a result thereof) as set forth above. In addition, if the Company determines in good faith that the repatriation (or other intercompany distribution) to the Company of any amounts required to be applied as set forth above would result in material and adverse tax consequences for the Company or any of its subsidiaries, Affiliates or indirect or direct equity owners, taking into account any foreign tax credit or benefit actually realized in connection with such repatriation (such amount, a “Restricted Amount”), as determined by the Company in good faith, the amount the Company shall be required to apply as set forth above shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of any Applicable Net Proceeds from the relevant Foreign Subsidiary would no longer have a material and adverse tax consequence within the 365-day period following the event giving rise to the Net Proceeds, an amount equal to the Net Proceeds not previously applied pursuant to this covenantSection 4.14 shall be so applied. Notwithstanding Sections 4.14(a) and 4.14(b), the Company and its Restricted Subsidiaries will not be required to apply an amount equal to any Net Proceeds in accordance with this Section 4.14 except to the extent that the aggregate Net Proceeds from all Asset Sales which are not applied in accordance with this Section 4.14 in any calendar year exceeds the greater of $200.0 million or 1.0% of Consolidated Total Assets at the time of receipt of such Net Proceeds (any amount less than such threshold, “Retained Asset Sale Proceeds”). Pending application of an amount equal to Net Proceeds pursuant to this Section 4.14, the Company or a Restricted Subsidiary may temporarily reduce Indebtedness, revolving credit borrowings or otherwise use such Applicable invest the Net Proceeds in any manner that is not prohibited by the this Indenture.
(dc) The amount equal to the Applicable Any Net Proceeds from Asset Sales that are not applied or invested or applied as provided and within the time period set forth in Section 4.10(b4.14(b) will be deemed to hereof shall constitute “Excess Proceeds”. .” When the aggregate amount of Excess Proceeds in any calendar year exceeds the greater of $50.0 million200.0 million or 1.0% of Consolidated Total Assets, the Company will shall make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), ) to all Holders of Notes and all holders of other Pari Passu Indebtedness to purchase the maximum aggregate principal amount of the Notes and such other Pari Passu Indebtedness that is in an amount equal to at least $2,000, or an integral multiple of $1,000 in excess of $2,000, that may be purchased out of the amount of such Excess Proceeds at an Proceeds. The offer price, price in the case of the Notes, in cash in an amount any Asset Sale Offer shall be equal to 100% of the principal amount thereof (or accreted value thereof, 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 provided for by the terms of such Pari Passu Indebtedness), interest to, but excludingnot including, the date fixed for the closing of such offerpurchase, and shall be payable in accordance with the procedures set forth in Section 3.09 (or, in respect cash. If any Excess Proceeds remain after consummation of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). The Company will commence an Asset Sale 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 (“Declined 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 PortionProceeds”) 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 the amount of such Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in for any manner purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the and other Pari Passu Indebtedness surrendered in an tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, will Company shall select the Notes to be purchased in the manner described under Section 3.02 and the Company will select such other 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 denominationbasis. Upon completion of any such each 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 shall 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 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)zero.
(e) [Reserved].
(fd) 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 such those laws or and regulations are applicable in connection with the each 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 the Asset Sale provisions of this Indenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations described in under the Asset Sale provisions of this Indenture by virtue thereofof such compliance.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, unless:
(1i) the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) 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
(2ii) except in the case of a Permitted Asset Swap, at least 7575.0% of the consideration for such Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), therefor received by the Company or a such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided provided, that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):amount of:
(A) any liabilities (as shown on the Company’s or any such Restricted Subsidiary’s most recent 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 Companyfootnotes thereto) of the Company or any such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 and for which the Company or a and all of its Restricted Subsidiary)Subsidiaries have been validly released by all applicable creditors in writing;
(B) any securities, notes or other obligations or assets received by the Company or a such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;; and
(C) any Designated Non-Cash cash Consideration received by the Company or a such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash cash Consideration received pursuant to this clause (Cc) that is at that time outstanding, not to exceed the greater of (ix) $400.0 30.0 million and (iiy) 5.02.25% of Adjusted Consolidated Net Tangible Total Assets of the Company at the time of the receipt of such Designated Non-Cash cash Consideration, with the fair market value of each item of Designated Non-Cash cash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and without giving effect to subsequent changes in value;
(D) Indebtedness of any Restricted Subsidiary that ceases , shall be deemed to be a Restricted Subsidiary as a result Cash Equivalents for purposes of such Asset Sale (this provision and for no 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof)purpose.
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or a such Restricted Subsidiary, at its option, may apply an amount equal to such the Net Proceeds (the “Applicable Proceeds”):from such Asset Sale,
(1i) to repay, redeem or repurchasepermanently reduce:
(A) Obligations in under the Senior Secured Credit Facilities, and to correspondingly reduce commitments with respect of Senior Indebtedness; orthereto;
(B) Obligations under Secured Indebtedness, which is secured by a Lien that is permitted by this Indenture, and to correspondingly reduce commitments with respect thereto;
(C) Obligations under other Senior Indebtedness (and to correspondingly reduce commitments with respect thereto), provided that the Issuers shall equally and ratably reduce Obligations under the Notes as provided under Section 3.07 hereof or through open-market purchases (to the extent such purchases are at or above 100.0% of the principal amount thereof) or by making an offer (in respect accordance with the procedures set forth in Section 3.09 and Section 4.10(c) hereof) to all Holders to purchase their Notes at 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes to be repurchased, to the date of repurchase; or
(D) Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Obligations Indebtedness owed to the Company Issuers or a another Restricted Subsidiary; or
(2ii) to make (aA) an Investment in any one or more businesses; provided , provided, that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Company or any of its Restricted Subsidiary Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes or continues to constitute a Restricted Subsidiary, (bB) capital expendituresexpenditures or (C) acquisitions of other assets, in each of (A), (cB) other expenditures made with respect and (C), used or useful in a Similar Business; or
(iii) to Oil make an Investment in (A) any one or more businesses, provided, that such Investment in any business is in the form of the acquisition of Capital Stock and Gas Properties, (d) acquisitions by results in the Company or any of its Restricted Subsidiary Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (B) properties (including fee and leasehold interests) or (eC) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securitiesassets that, in the case each of clauses
(a) A), (dB) and this clause (eC), either (i) that are or will be used or useful in replace the Oil and Gas Business or (ii) that replacebusinesses, in whole or in part, the properties or and/or assets that are the subject of such Asset Sale; provided that provided, that, in the case of this clause clauses (2)ii) and (iii) above, a binding commitment will shall be treated as a permitted application of the Applicable Net Proceeds from the date of such commitment so long as the Company Company, or a such Restricted Subsidiary enters into such commitment with the good faith expectation that such Applicable Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (oran “Acceptable Commitment”) and, if laterin the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, 365 the Company or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days after the receipt of such Applicable Proceeds)cancellation or termination; provided, further, provided further that if any such commitment Second Commitment is later cancelled or terminated for any reason before such Applicable Net Proceeds are applied, then such Applicable Net Proceeds will shall constitute Excess Proceeds (as defined below); or
(3) any combination of the foregoingProceeds.
(c) Pending the final application of the amount of any Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Any Net Proceeds from the Asset Sales Sale that are not invested or applied as provided and within the time period set forth in Section 4.10(b) hereof will be deemed to constitute “Excess Proceeds”. .” When the aggregate amount of Excess Proceeds exceeds $50.0 25.0 million, the Company will Issuers shall make an offer to all Holders and, at if required by the option of the Company, to any holders terms of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and ”), to the holders of such offer, Pari Passu Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to at least $2,000, or an integral multiple of $1,000 in excess of $2,000thereafter, that may be purchased out of the Excess Proceeds at an offer price, in the case of the Notes, price in cash in an amount equal to 100100.0% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other priceinterest and Additional Interest, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to 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)this Indenture. The Company Issuers will commence an Asset Sale Offer with respect to Excess Proceeds within 30 days ten Business Days after the date that the amount of Excess Proceeds exceeds exceed $50.0 25.0 million by mailing or electronically delivering the notice required pursuant to Section 3.09the terms of this Indenture, with a copy to the Trustee, or otherwise in accordance with Applicable Procedures. The Company Issuers may satisfy the foregoing obligation obligations with respect to any Applicable Net Proceeds from an Asset Sale by making an offer to purchase Notes Asset Sale Offer with respect to the amount of all or part of the available Applicable such Net Proceeds (the “Advance Portion”) prior to the expiration of the Asset Sale Proceeds Application Period relevant 365 days (or such longer period provided above) or with respect to the amount Excess Proceeds of all $25.0 million or a part of the available Applicable Proceeds in advance of being required to do so by this Indenture (the “Advance Offer”)less. 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)Proceeds, 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 Indenturefor general corporate purposes. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or or the Pari Passu Indebtedness surrendered in an Asset Sale Offer by such holders thereof exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, will Trustee shall select the Notes to be purchased in the manner described under Section 3.02 and the Company will shall 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 shall be reset to zero (regardless of whether there are any remaining Excess Proceeds (or Advance Portion) upon such completion).
(d) and Pending the Company final application of any Net Proceeds pursuant to this Section 4.10, the holder of such Net Proceeds may use apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility, including under the Senior Secured Credit Facilities, or otherwise invest such Net Proceeds in any remaining Excess Proceeds for any purpose manner not otherwise prohibited under by this Indenture. An Asset Sale Offer or Advance Offer may be made at 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].The notice, if delivered or mailed in a manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice. If
(fa) the notice is delivered or mailed in a manner herein provided and (b) any Holder fails to receive such notice or a Holder receives such notice but it is defective, such Holder’s failure to receive such notice or such defect shall not affect the validity of the proceedings for the purchase of the Notes as to all other Holders that properly received such notice without defect. The Company will Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase by the Issuers 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 the provisions of this Indenture, the Company will Issuers shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(g) . The Company’s obligation to make an offer to repurchase the Notes pursuant to provisions of this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the Notes then outstanding Notesoutstanding.
Appears in 1 contract
Sources: Indenture (B&H Contracting, L.P.)
Asset Sales. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, consummate an of its Subsidiaries to conduct any Asset Sale, unless:
Sale unless (1x) the Company (or such Restricted the Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at for Asset Sales having a fair market value or Net Proceeds in excess of $5.0 million as evidenced by a resolution of the time Board of contractually agreeing Directors set forth in an Officers' Certificate delivered to such Asset Salethe Trustee) of the assets sold or otherwise disposed of; and
of and (2y) 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 therefor by the Company or a Restricted Subsidiary, as the case may be, such Subsidiary is in the form of cash or Cash Equivalentscash; provided provided, however, that each the amount of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s 's or any Restricted such Subsidiary’s 's most recent 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 Companythereto) of the Company or any Restricted Subsidiary, Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, guarantee thereof) that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary);
assets, (B) any securities, notes or other obligations or assets received by the Company or a Restricted any such Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are immediately converted by the Company or a Restricted such Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
), (C) any Designated Non-Cash Consideration assets 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 exchange for assets pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of (i) $400.0 million a like-kind exchange 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 any $25.0 million of Designated Noncash Consideration (which shall not at any Restricted Subsidiary that ceases time exceed, in the aggregate, $25.0 million outstanding), in each case, shall be deemed to be a Restricted Subsidiary as a result cash for purposes 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) this provision. Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company (or a Restricted such Subsidiary) may apply the Net Proceeds from such Asset Sale, at its option, may apply an amount equal to such Net Proceeds either (the “Applicable Proceeds”):
(1a) to repayan investment in another business, redeem the making of a capital expenditures or repurchase:
the acquisition of other long-term assets, in each case, in the same or similar line of business as the Company was engaged in on the date of this Indenture, or (Ab) Obligations in respect of Senior Indebtedness; or
(B) Obligations in respect of to permanently reduce long-term Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Obligations owed to the Company or a Restricted Subsidiary; or
(2) to make (a) an Investment in any one or more businesses; provided that such Investment in any business is in the form Subsidiary 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 permanently reduce borrowings and commitments under Indebtedness permitted to Oil and Gas Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this be incurred pursuant to clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable Proceeds from the date second paragraph of such commitment so long as the Company or a Restricted Subsidiary enters into such commitment with the good faith expectation that such Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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) Section 4.09 hereof. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantsuch Net Proceeds, the Company and its Restricted Subsidiaries (or such Subsidiary) may temporarily reduce Indebtedness, Indebtedness or otherwise use invest such Applicable Net Proceeds in any manner that is not prohibited by the this Indenture.
(d) The amount equal to the Applicable . Any Net Proceeds from such Asset Sales Sale that are not finally applied or invested or applied as provided and within in the time period set forth in Section 4.10(b) first sentence of this paragraph will be deemed to constitute “"Excess Proceeds”. When ." Within five days of each date on which the aggregate amount of Excess Proceeds exceeds $50.0 5.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “shall commence a pro rata Asset Sale Offer”), Offer pursuant to Section 3.09 hereof to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, price in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other priceinterest and Liquidated Damages thereon, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to the date fixed for the closing of such offer, 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). The Company will commence an Asset Sale 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”)hereof. 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)Proceeds, the Company and its Restricted Subsidiaries (or such Subsidiary) may use any remaining Excess Proceeds (or in the case such deficiency for general corporate purposes. Upon completion of an Advance Offersuch offer to purchase, 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in this Indenture by virtue thereofbe reset at zero.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Indenture (Key Energy Group Inc)
Asset Sales. (a) The Company will not, and will not permit any of the Company’s Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1) the Company (or such the 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 ) at the time of the Asset Sale) Sale at least equal to the fair market value Fair Market Value (measured at as of the time date of contractually agreeing the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration for such received in the Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), received Sale by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this provision, each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(A) any liabilities (liabilities, as shown on the Company’s or any Restricted Subsidiary’s most recent 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 sheetthereto, as determined in good faith by the Company) of the Company or any Restricted Subsidiary, Subsidiary of the Company (other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, Note Guarantee) that are (i) assumed by the transferee of any such assets (pursuant to a customary novation 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 indemnity agreement that releases the Company or a such Restricted Subsidiary)Subsidiary from or indemnifies against further liability;
(B) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary of the Company from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are are, within 180 days, converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalentscash, 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 Salereceived in that conversion;
(C) any Designated Non-Cash cash Consideration received by the Company or a 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 cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of (ix) $400.0 200.0 million and (iiy) 5.03.0% of Adjusted Consolidated Net Tangible Total Assets of the Company at the time of the receipt of such Designated Non-Cash Consideration, cash Consideration (with the fair market value Fair Market Value of each item of Designated Non-Cash cash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and without giving effect to subsequent changes in value);
(D) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary of the Company that is not subordinated Indebtedness; and
(E) Indebtedness of any Restricted Subsidiary that ceases to be is no longer a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or a Restricted Subsidiary)Sale, to the extent that the Company and each other Restricted Subsidiary are released from any guarantee payment obligations with respect to such Indebtedness or 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company (or a the applicable Restricted Subsidiary, at its option, as the case may be) may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”)::
(1) to repayreduce Indebtedness and other Obligations under or pursuant to a Credit Facility or any Secured Indebtedness (unless the Notes are then secured by a priority or pari passu lien) of the Company or any Restricted Subsidiary and, redeem or repurchase:if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(A2) to reduce Indebtedness and other Obligations in respect of Senior Indebtedness; or
(B) Obligations in respect of Indebtedness of a Restricted Subsidiary that is not a Guarantor, Guarantor (other than Obligations Indebtedness owed to the Company or a Restricted Subsidiary; orSubsidiary of the Company);
(23) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either repay (i) Indebtedness or other Obligations of the Company that are or will be used or useful in rank pari passu with the Oil and Gas Business Notes or (ii) Indebtedness and other Obligations of a Guarantor that replace, in whole or in part, the properties or assets that are the subject of rank pari passu with such Asset Sale; provided that in the case of this clause Guarantor’s Note Guarantee (2), a binding commitment will be treated as a permitted application of the Applicable Proceeds from the date of such commitment so long as other than Indebtedness owed to the Company or a Restricted Subsidiary enters into such commitment of the Company); provided that the Company shall equally and ratably redeem or repurchase the Notes pursuant to Section 3.07 hereof, or by making an offer (in accordance with the good faith expectation that such Applicable Proceeds will be applied procedures set forth below for an Asset Sale Offer) to satisfy such commitment within 180 days all Holders to purchase the Notes at 100% of such commitment (orthe principal amount thereof, plus accrued and unpaid interest, if laterany, 365 days to but not including the date of repayment;
(4) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after the receipt of such Applicable Proceeds); provided, further, that if giving effect to any such commitment acquisition of Capital Stock, the Permitted Business is later cancelled or terminated for any reason before such Applicable Proceeds becomes a Restricted Subsidiary of the Company;
(5) to make a capital expenditure;
(6) to acquire other assets that are applied, then such Applicable Proceeds will constitute Excess Proceeds (not classified as defined below)current assets under GAAP and that are used or useful in a Permitted Business; or
(37) any combination of the foregoing. The Company will be deemed to have complied with the provisions set forth in clause (4), (5) and (6) of this Section 4.10(b) if within 365 days after the Asset Sale that generated the Net Proceeds, the Company (or the applicable Restricted Subsidiary) has entered into and not abandoned or rejected a binding agreement to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business or to make a capital expenditure or acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business and that acquisition or capital expenditure is thereafter completed within 180 days after the end of such 365-day period. Pending the final application of any Net Proceeds, the Company (or 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) Pending the final application of the amount of any Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Any Net Proceeds from Asset Sales that are not applied or invested or applied as provided and within the time period set forth in Section 4.10(b) hereof will be deemed to constitute “Excess Proceeds”. .” When the aggregate amount of Excess Proceeds exceeds $50.0 million, within 30 days thereof, the Company will make an offer Asset Sale Offer to all Holders and, at the option of Notes and all holders of Indebtedness of the Company, to any holders of any Indebtedness Company that is ranks pari passu with the Notes and containing provisions similar to those set forth in this 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 (“Pari Passu Indebtedness” or accreted value, if applicable) of Notes and such offerother 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 and Additional Interest, if any, to but not including the date of purchase, prepayment or redemption, subject to the rights of Holders of Notes on a relevant record date to receive interest due on an “interest payment date occurring on or prior to the Purchase Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer”), to purchase the maximum Company 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, the Company will select the Notes and such Pari Passu other pari passu Indebtedness to be purchased on a pro rata basis, based on the amounts tendered or required to be prepaid or redeemed, and thereafter the Trustee will select the Notes to be purchased on a pro rata basis based on the amount tendered (with, in each case, such adjustments as may be deemed appropriate by the Company or the Trustee, as applicable, so that is only Notes in an amount equal to at least denominations of $2,0001,000, or an integral multiple of $1,000 in excess thereof, will be purchased, provided that any unpurchased portion of a Note must be in a minimum denomination 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, 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 provided 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). The Company will commence an Upon completion of each Asset Sale Offer with respect to Excess Proceeds within 30 days after the date that Offer, 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 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)zero.
(e) [Reserved].
(fd) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws or and regulations are applicable in connection with the each 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 the provisions of Section 3.09 hereof or this IndentureSection 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to under Section 3.09 hereof or this Section 4.10 may be waived or modified with the written consent by virtue of the Holders of a majority in principal amount of the then outstanding Notessuch compliance.
Appears in 1 contract
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, consummate (a) sell, lease, convey or otherwise dispose of any assets (including by way of a Sale and Leaseback Transaction, but excluding a Qualifying Sale and Leaseback Transaction) other than sales of inventory in the ordinary course of business (provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company will be governed by the provisions of Section 4.14 hereof and/or the provisions of Section 5.01 hereof, and not by the provisions of this Section 4.10), or (b) issue or sell Equity Interests of any of its Restricted Subsidiaries, that, in the case of either clause (a) or (b) above, whether in a single transaction or a series of related transactions, (i) have a fair market value in excess of $2.0 million, or (ii) result in Net Proceeds in excess of $2.0 million (each of the foregoing, an "Asset Sale"), unless:
unless (1x) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at evidenced by an Officers' Certificate delivered to the time Trustee, and for Asset Sales having a fair market value or resulting in net proceeds in excess of contractually agreeing $10.0 million, evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to such Asset Salethe Trustee) of the assets sold or otherwise disposed of; and
of and (2y) 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), therefor received by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided that like-kind assets (in each case as determined in good faith by the Company, evidenced by a resolution of the following will be deemed Board of Directors and certified by an Officers' Certificate delivered to be cash or Cash Equivalents for purposes the Trustee); provided, however, that the amount of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s 's or any such Restricted Subsidiary’s 's most recent 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 Companythereto) of the Company or any such Restricted Subsidiary, Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, Subsidiary Guarantee) that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary);
and (B) any securities, notes or other obligations or assets received by the Company or a such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are immediately converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash received) or Cash Equivalents receivedEquivalents, shall be deemed to be cash for purposes of this provision; and provided, further, that the 75% limitation referred to in the foregoing clause (y) within 180 days following shall not apply to any Asset Sale in which the closing cash portion of the consideration received therefrom is equal to or greater than what the after-tax proceeds would have been had such Asset Sale;
(C) any Designated Non-Cash Consideration received Sale complied with the aforementioned 75% limitation. A transfer of assets or issuance of Equity Interests by the Company or to a Wholly Owned 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) $400.0 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 by a Wholly Owned 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 another Wholly Owned Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such will not be deemed to be an 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) . Within 365 360 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or a Restricted Subsidiarymay, at its option, may apply an amount equal to such the Net Proceeds from such Asset Sale either (the “Applicable Proceeds”):
(1a) to repaypermanently reduce Senior Debt, redeem or repurchase:
(Ab) Obligations to an investment in respect of Senior Indebtedness; or
(B) Obligations in respect of Indebtedness of a Restricted Subsidiary that is not a Guarantoror in another business or capital expenditure or other long-term/tangible assets, other than Obligations owed to the Company or a Restricted Subsidiary; or
(2) to make (a) an Investment in any one or more businesses; provided that such Investment in any business is each case, in the form same line of the acquisition of Capital Stock and results in business as the Company or any of its 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, Subsidiaries was engaged in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable Proceeds from on the date of such commitment so long as the Company this Indenture or a Restricted Subsidiary enters into such commitment with the good faith expectation that such Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is later cancelled in businesses similar 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) reasonably related thereto. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantsuch Net Proceeds, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, Senior Bank Debt or otherwise use invest such Applicable Net Proceeds in any manner that is not prohibited by the this Indenture.
(d) The amount equal to the Applicable . Any Net Proceeds from such Asset Sales Sale that are not applied or invested or applied as provided and within in the time period set forth in Section 4.10(b) first sentence of this paragraph will be deemed to constitute “"Excess Proceeds”. ." When the aggregate amount of Excess Proceeds exceeds $50.0 10.0 million, the Company will shall make an offer to all Holders and, at of Notes and the option holders of the Company, to 1997 Notes and any holders of any future Indebtedness that is ranking pari passu with the Notes Notes, which Indebtedness contains similar provisions requiring the Company to repurchase such Indebtedness (“Pari Passu Indebtedness” and such offer, an “"Asset Sale Offer”"), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu other Indebtedness that is in an amount equal to 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 Proceeds, at an offer price, in the case of the Notes, price in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, 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 provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to the date fixed for the closing of such offerpurchase, in accordance with the procedures set forth in Section 3.09 (orthis Indenture; provided, in respect of however, that prior to making any such Pari Passu IndebtednessAsset Sale Offer, the agreement or instrument governing Company may, to the terms thereof). The Company will commence an Asset Sale Offer with respect to extent required by the 1996 Indenture, use such Excess Proceeds within 30 days after to repurchase 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”)1996 Notes. To the extent that the aggregate principal amount (or accreted value, as applicable) of Notes and such Pari Passu other pari passu Indebtedness (including the 1997 Notes) tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds (or in the case of an Advance OfferProceeds, 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 Indenturegeneral corporate purposes. If the aggregate principal amount of Notes and such other Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other Indebtedness to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero. An Asset Sale Offer or Advance Offer may shall be made at pursuant to the same time as consents are solicited provisions of Section 3.09 hereof. No later than the date which is five Business Days after the date on which the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall notify the Trustee of such Asset Sale Offer and provide the Trustee with respect an Officers' Certificate setting forth the calculations used in determining the amount of Net Proceeds to an amendment, supplement be applied to the purchase of Notes. The Company shall commence or waiver of this Indenture, Notes and/or Guarantees (but cause to be commenced the Asset Sale Offer or Advance Offer may not condition tenders on a date no later than 15 Business Days after such notice (the delivery of such consents"Commencement Date").
(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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Indenture (Iron Mountain Inc /De)
Asset Sales. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, consummate cause, make or suffer to exist an Asset Sale, unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at as determined in good faith by the time of contractually agreeing to such Asset SaleCompany) of the assets 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 Aleris Zhenjiang as required by the Zhenjiang 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
(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), therefor received by the Company or a such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):amount of
(A) any liabilities (as shown on the Company’s or any such Restricted Subsidiary’s most recent 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 Companythereto) of the Company or any such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (or a third party in connection with such transferon behalf of the transferee) or (ii) otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to and for which the Company or a such Restricted Subsidiary);Subsidiary has been validly released by all creditors in writing,
(B) any securities, notes or other obligations or assets received by the Company or a such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;Sale and
(C) any Designated Non-Cash Noncash Consideration received by the Company or a such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Noncash Consideration received pursuant to this clause (C) that is at that time outstandinghas not previously been converted to cash, not to exceed the greater of (ix) $400.0 100.0 million and (iiy) 5.03.0% of Adjusted Consolidated Net Tangible Total Assets of the Company at the time of the receipt of such Designated Non-Cash Noncash Consideration, with the fair market value of each item of Designated Non-Cash Noncash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and without giving effect to subsequent changes in value;
(D) Indebtedness of any Restricted Subsidiary that ceases , shall be deemed to be a Restricted Subsidiary as a result cash for purposes of such Asset Sale (this provision and for no 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof)purpose.
(b) Within 365 450 days after any of the Company’s or any Restricted Subsidiary’s receipt of any the Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or a such Restricted SubsidiarySubsidiary may, at its option, may apply an amount equal to such the Net Proceeds (the “Applicable Proceeds”):from such Asset Sale:
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.permanently reduce
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person (other than the Company or any of its Restricted Subsidiaries) assuming responsibility for, any liabilities, contingent or otherwise, in connection with ) at the time of such Asset Sale) Sale at least equal to the fair market value (measured as determined at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed ofof or the Equity Interests issued; 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), therefor received by the Company or a such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that each of the following will shall be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):provision and for no other purpose:
(A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent 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 such Restricted Subsidiary, Subsidiary (other than Contingent Obligations and liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, applicable Guarantee) that are (i) assumed by the transferee of any such assets (or a third party that are otherwise extinguished by the transferee 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 and for which the Company or a and all such Restricted Subsidiary)Subsidiaries have been released;
(B) any securities, notes or other similar obligations or assets received by the Company or a such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following of the closing of such Asset Sale;receipt thereof; and
(C) any Designated Non-Cash cash Consideration received by the Company or a such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash cash Consideration received pursuant to this clause (C) that is at that time outstanding), less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection in respect of such Designated Non-cash Consideration, not to exceed the greater of (ix) $400.0 25.0 million and (iiy) 5.012.5% of Adjusted Consolidated Net Tangible Assets of the Company at the time of the receipt of such Designated Non-Cash ConsiderationLTM EBITDA, with the fair market value of each item of Designated Non-Cash cash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or a such Restricted Subsidiary, at its option, may apply an amount equal to such the Net Proceeds (the “Applicable Proceeds”):from such Asset Sale,
(1) to repay, redeem or repurchasepermanently reduce Indebtedness as follows:
(A) to permanently reduce (x) Secured Indebtedness that is secured by a Lien that is permitted by this Indenture or (y) Indebtedness under the Senior Credit Facility, and, in each case (if applicable), to permanently reduce commitments with respect thereto;
(B) to permanently reduce Obligations under other Senior Indebtedness of the Company or a Subsidiary Guarantor (and (if applicable) to permanently reduce commitments with respect thereto); provided that the Company shall equally and ratably reduce (or offer to reduce, as applicable) Obligations under the Notes; provided further that all reductions of Obligations under the Notes shall be made as provided under Section 3.07 or through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof plus accrued and unpaid interest) or by making an offer (in respect accordance with the procedures set forth below for an Asset Sale Offer) to all Holders of Senior IndebtednessNotes to purchase their Notes at or above 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes of the applicable Series that would otherwise be prepaid; or
(BC) Obligations in respect if the assets that are the subject of such Asset Sale are the property or assets of a Restricted Subsidiary that is not a Subsidiary Guarantor, to permanently reduce Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, other than Obligations Indebtedness owed to the Company or a any Restricted Subsidiary; or;
(2) to make (aA) an Investment in any one or more 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 of its Restricted Subsidiary Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes or continues to constitute a Restricted Subsidiary, (bB) capital expenditures, expenditures or (c) other expenditures made with respect to Oil and Gas Properties, (dC) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assetsbusinesses, other than securitiesproperties, assets or intellectual property rights that, in the case of clauses
each of (a) A), (dB) and this clause (eC), either (i) that are or will be used or useful in a Similar Business;
(3) to make an Investment in (A) any one or more businesses; provided that such Investment in any business is in the Oil form of the acquisition of Capital Stock and Gas Business results in the Company or any of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (B) properties or (iiC) that replaceacquisitions of other businesses, properties, assets or intellectual property rights that, in whole the case of each of (A), (B) and (C), replace the businesses, properties, assets or in part, the properties or assets intellectual property rights that are the subject of such Asset Sale; or
(4) any combination of the foregoing; provided that that, in the case of this clause clauses (2) and (3) of this Section 4.10(b), a binding commitment will entered into not later than the end of such 365-day period shall be treated as a permitted application of the Applicable Net Proceeds from the date of such commitment so long as the Company or a such Restricted Subsidiary enters into such commitment with the good faith expectation that such Applicable an amount equal to the Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt end of such Applicable Proceeds); provided365-day period (an “Acceptable Commitment”) and, further, that if in the event any such commitment Acceptable Commitment is later cancelled or terminated for any reason before such Applicable an amount equal to the Net Proceeds are is so applied, then the Company or such Applicable Restricted Subsidiary shall be permitted to apply an amount equal to the Net Proceeds will in any manner set forth above before the expiration of such 180-day period and, in the event the Company or such Restricted Subsidiary fails to do so, then such Net Proceeds shall constitute Excess Proceeds (as defined below); or
(3) any combination of the foregoingProceeds.
(c) Pending the final application of the amount of any Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Any Net Proceeds from the Asset Sales Sale that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. .” When the aggregate amount of Excess Proceeds exceeds the greater of (x) $50.0 million40.0 million and (y) 20.0% of LTM EBITDA (the “Excess Proceeds Threshold”), the Company will shall make an offer to all Holders of the Notes and, at if required by the option terms of the Companyany Senior Indebtedness, to any the holders of any such Senior Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Senior Indebtedness that is in an amount equal to at least $2,000, or an integral multiple of $1,000 (but in excess minimum amounts of $2,000, 2,000 of principal amount) that may be purchased out of the with such 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, 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 provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to the date fixed for the closing of such offer, and in the case of any Senior Indebtedness at the offer price required by the terms thereof but not to exceed 100% of the principal amount thereof, plus accrued and unpaid interest, if any, in each case 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)this Indenture. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within 30 days 10 Business Days after the date that the amount of Excess Proceeds exceeds $50.0 million exceed the Excess Proceeds Threshold by mailing or electronically delivering the notice required pursuant to Section 3.09the terms of this Indenture, to the Holders with a copy to the Trustee, or otherwise in accordance with Applicable Procedures. The Company may satisfy the foregoing obligation obligations with respect to any Applicable Net Proceeds from an Asset Sale by making an offer to purchase Notes Asset Sale Offer with respect to the amount of all or part of the available Applicable such Net Proceeds (the “Advance Portion”) prior to the expiration of the relevant 365-day period. Upon the completion of each Asset Sale Proceeds Application Period Offer (including a voluntary Asset Sale Offer with respect to all Excess Proceeds even though less than the Excess Proceeds Threshold), the amount of all or a part of the available Applicable Excess Proceeds in advance of being required shall be reset to do so by this Indenture zero.
(the “Advance Offer”). d) To the extent that the aggregate principal amount (or accreted value, as applicable) of Notes and such Pari Passu Indebtedness Senior Indebtedness, as the case may be, tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds (or in the case of an Advance Offer, the Advance Portion)Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in for any manner purposes not otherwise prohibited by under this Indenture. If the aggregate principal amount (of Notes or accreted valueSenior Indebtedness, as applicable) of Notes and/or the Pari Passu Indebtedness case may be, surrendered in an Asset Sale Offer by such holders thereof exceeds the amount of Excess Proceeds (Proceeds, such Notes or in Senior Indebtedness, as the case of an Advance Offer, the Advance Portion), the Trustee, in accordance with the Applicable Proceduresmay be, 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 such Notes or Senior Indebtedness, as the case may be, tendered (and the Trustee or Registrar will select the tendered Notes of tendering holders on a pro rata basis, or such Pari Passu Indebtedness tendered other basis in accordance 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 OfferDTC procedures, for purposes of this provision based on 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 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 consentstendered).
(e) [Reserved]Pending the final application of any Net Proceeds, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations described set forth 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 as a result of an Asset Sale may be waived or modified modified, prior to the occurrence of such Asset Sale, with the written consent of the Holders of a majority in principal amount of the Notes of the applicable Series then outstanding Notesoutstanding.
Appears in 1 contract
Sources: Indenture (Glatfelter Corp)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset SaleSale unless (i) the Company or the Restricted Subsidiary, unless:
as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (1evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $10.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, receives consideration consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (including by way A) the amount 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) Senior Debt of the assets sold Company or otherwise disposed of; and
such Restricted Subsidiary that is assumed by the transferee in any such transaction and (2B) except in the case of a Permitted Asset Swap, at least 75% of the any 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 such Restricted Subsidiary, as the case may be, is in the form that consists of cash (1) all or Cash Equivalents; provided that each substantially all of the following will assets of one or more Similar Businesses, (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent 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 liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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) $400.0 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) provision. Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or a Restricted Subsidiarymay apply such Net Proceeds, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1i) to repayrepay Indebtedness under a Credit Facility, redeem or repurchase:
(Aii) 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; or
acquisition of Permitted Securities, (2iii) to make (a) an Investment in any the acquisition of all or substantially all of the assets of one or more businesses; provided that such Investment in any business is in Similar Businesses, (iv) to the form making of a capital expenditure or (v) to the acquisition of Capital Stock and results other long-term assets 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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) Similar Business. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantsuch Net Proceeds, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, Indebtedness under a Credit Facility or otherwise use invest such Applicable Net Proceeds in any manner that is not prohibited by the this Indenture.
(d) The amount equal to the Applicable . Any Net Proceeds from Asset Sales that are not applied or invested or applied as provided and within in the time period set forth in Section 4.10(b) will first sentence of this paragraph shall be deemed to constitute “"Excess Proceeds”". When the aggregate amount of Excess Proceeds exceeds $50.0 10.0 million, the Company will be required to make an offer to all Holders and, at the option of the Company, to Notes (an "Asset Sale Offer") and any holders of any other Indebtedness that is ranks pari passu with the Notes (“Pari Passu Indebtedness” including, without limitation, the December 1998 Notes, the 2002 Notes, the May 2003 Notes and the December 2003 Notes) that, by its terms, requires the Company to offer to repurchase such offer, an “Asset Sale Offer”), Indebtedness with such Excess Proceeds to purchase the maximum aggregate principal amount of the Notes and such Pari Passu pari passu Indebtedness that is in an amount equal to at least $2,000, or an integral multiple of $1,000 in excess of $2,000, that may be purchased out of the such Excess Proceeds at an offer price, in the case of the Notes, price in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other priceinterest thereon, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to the date fixed for the closing of such offerpurchase, 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). The Company will commence an Asset Sale 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”)Indenture. To the extent that the aggregate principal amount (or accreted value, as applicable) of Notes and such Pari Passu or 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)Proceeds, 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 Indenturefor general corporate purposes. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the Pari Passu or pari passu Indebtedness surrendered in an Asset Sale Offer by Holders thereof exceeds the amount of Excess Proceeds (or in the case of an Advance Asset Sale Offer, the Advance Portion), Company shall repurchase such Indebtedness on a pro rata basis and the Trustee, in accordance with the Applicable Procedures, will Trustee shall 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 denominationbasis. Upon completion of any such Asset Sale Offeroffer to purchase, 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 shall 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 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)zero.
(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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Indenture (L-3 Communications Cincinnati Electronics CORP)
Asset Sales. (a) The From and after the Completion Date, the Company will notshall not consummate, and will shall not permit any of its Restricted Subsidiary toSubsidiaries to consummate, consummate an Asset Sale, unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured as determined in good faith by the Company 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, if the property or assets sold or otherwise disposed of have a fair market value in excess of the greater of $375.0 million and 50.0% of LTM EBITDA for the most recently ended Test Period at the time of such disposition, at least 7575.0% of the consideration for such Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), therefor received by the Company or a such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):amount of:
(A) any liabilities (as shown on the Company’s liabilities, contingent or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto orotherwise, 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 such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are owed to the Company or a Restricted Subsidiary that (ix) are assumed by the transferee of any such assets (or a third party in connection with such transfer) or (iiy) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Company or a its Restricted Subsidiary);Subsidiaries) and, in each case, for which the Company and all of its Restricted Subsidiaries have been validly released,
(B) any securities, notes or other obligations or assets received by the Company or a such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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 any 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 in accordance with the terms of this Indenture;
(D) consideration consisting of Indebtedness of the Issuers or a Guarantor (other than intercompany debt owed to the Company or any Restricted Subsidiary and other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, Holdings or any Restricted Subsidiary;
(E) any Designated Non-Cash cash Consideration received by the Company or a such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, as determined by the Company, taken together with all other Designated Non-Cash cash Consideration received pursuant to this clause (CE) that is at that time outstanding, not to exceed the greater of (i) $400.0 225.0 million and (ii) 5.030.0% of Adjusted Consolidated Net Tangible Assets of LTM EBITDA for the Company most recently ended Test Period at the time of the receipt of |US-DOCS\143900591.2|| such Designated Non-Cash Consideration, cash Consideration (with the fair market value of each such item of Designated Non-Cash cash Consideration being measured, measured pursuant to this clause (E) 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;); and
(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;
(EF) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in clauses (2) or (3) of Section 4.10(b)(2); and
(F4.10(b) with respect to any Asset Sale of Oil and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed hereof shall be deemed to be assumed by the transferee (or an Affiliate thereof)Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 365 540 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a such Restricted Subsidiary, at its their option, may apply an amount equal to such the Net Proceeds (the “Applicable Proceeds”):from such Asset Sale,
(1) to repayreduce, redeem prepay, repay or repurchasepurchase:
(A) to the extent such Net Proceeds are from an Asset Sale of Collateral, Obligations with Pari Passu Lien Priority (including the Senior Credit Facilities or any Refinancing Indebtedness in respect thereof but other than Indebtedness owed to the Company or any Restricted Subsidiary), and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto, provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers shall reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof (ii) purchasing Notes through open-market purchases or (iii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase;
(B) to the extent such Net Proceeds resulted from an Asset Sale not consisting of Collateral, Obligations in respect of Senior Indebtedness; orother Secured Indebtedness (which may include the Notes), and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto;
(BC) Obligations in respect of the Notes or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, other than Indebtedness owed to the Company or any Restricted Subsidiary (and, in the case of revolving commitments, to correspondingly reduce commitments with respect thereto), provided that, to the extent either Issuer or any Restricted Subsidiary will so repay any such Indebtedness (other than the Notes), the Issuers will reduce Obligations under the Notes on a pro rata basis by, at their option, (i) redeeming Notes as provided under Section 3.07 hereof or (ii) by making an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the date of repurchase; or |US-DOCS\143900591.2||
(D) Obligations in respect of Indebtedness of a Restricted Subsidiary that is not a GuarantorNon-Guarantor Subsidiary, other than Obligations Indebtedness owed to the Company or a another Restricted Subsidiary; provided, in the case of clauses (A) or (C) above, (i) if an offer to purchase any Indebtedness of the Company or any Restricted Subsidiary is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Indebtedness, and no Net Proceeds in the amount of such offer will be deemed to exist following such offer, and (ii) if the holder of any Indebtedness of a Restricted Subsidiary of the Company declines the repayment of such Indebtedness owed to it from such Net Proceeds such amount will be deemed repaid to the extent of the declined Net Proceeds, or
(2) to make (a) an Investment in (A) any one or more businesses; , provided that such Investment in any business is in the form of the acquisition of Capital Stock and that results in the Company or any Restricted Subsidiary Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that it such business constitutes a Restricted Subsidiary or continues to constitute increases the Company’s direct or indirect percentage ownership of the Capital Stock of a Restricted Subsidiary, (b) capital expenditures, (c) other expenditures made with respect to Oil and Gas Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.;
Appears in 1 contract
Sources: Indenture (Viasat Inc)
Asset Sales. (a) The Company will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, consummate engage in an Asset Sale, unless:
Sale unless (1i) the Company (or such Restricted the Subsidiary, as the case may be, ) receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise, in connection with ) at the time of such Asset Sale) 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 value, and in the case of a Permitted Asset Swaplease of assets, at least 75% of the consideration a lease providing for such Asset Sale, together with all rent and other Asset Sales since May 6, 2021 (on a cumulative basis), received by conditions which are no less favorable to the Company (or a Restricted the Subsidiary, as the case may be) in any material respect than the then prevailing market conditions (evidenced in each case by a resolution of the Board of Directors of such entity set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests sold or otherwise disposed of, and (ii) at least 80% (100% in the case of lease payments) of the consideration therefor (excluding contingent liabilities assumed by the transferee of any such assets) received by the Company or such Subsidiary is in the form of cash or Cash EquivalentsEquivalents paid at the closing thereof; provided that each the amount of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s 's or any Restricted such Subsidiary’s 's most recent balance sheet or in the notes thereto orthereto, if incurred or accrued subsequent to the date of such balance sheetexcluding contingent liabilities), 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 liabilities Subsidiary that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary);
and (B) any securitiesnotes, notes securities or other obligations or assets received by the Company or a Restricted any such Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are promptly, but in no event more than 30 days after receipt, converted by the Company or a Restricted such Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash received), will be deemed to be cash for purposes of this provision.
(b) The Company or Cash Equivalents receivedany of its Subsidiaries may apply the Net Proceeds from such Asset Sale, at its option,
(i) to permanently reduce Senior Term Debt within 180 days following 12 months from the closing later of the date of such Asset Sale;Sale or the receipt of such Net Proceeds,
(Cii) any Designated Non-Cash Consideration received by to permanently reduce Senior Revolving Debt (and to correspondingly reduce commitments with respect thereto) within 12 months from the later of the date of such Asset Sale or the receipt of such Net Proceeds,
(iii) to permanently prepay, repay or purchase Senior Indebtedness or Guarantor Senior Indebtedness of the Company or a Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all Guarantor (other Designated Non-Cash Consideration received pursuant to this clause than Senior Term Debt or Senior Revolving Debt) or Indebtedness (Cother than Preferred Stock) that is at that time outstanding, not to exceed the greater of (i) $400.0 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 anda Subsidiary Guarantor (that, in either casethe case of Indebtedness other than Senior Indebtedness or Guarantor Senior Indebtedness, without giving effect to subsequent changes in value;
(D) Indebtedness of any Restricted Subsidiary that ceases is required by its terms to be a Restricted Subsidiary prepaid, repaid or repurchased as a result of such Asset Sale Sale) (other than intercompany debt owed and to correspondingly reduce any applicable commitments with respect thereto) within 12 months from the Company or a Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment later of the principal amount date of such Indebtedness in connection with Asset Sale or the receipt of such Asset Sale;Net Proceeds or
(Eiv) any Investment, Capital Stock, assets, property or capital or other expenditure to reinvest in Additional Assets (including by means of the kind referred to an Investment in Section 4.10(b)(2); and
(F) Additional Assets by a Subsidiary with respect to any Asset Sale of Oil and Gas Properties disposed of Net Proceeds received by the Company or any Restricted Subsidiary in which another Subsidiary) within 12 months from the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production later of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable Proceeds from the date of such commitment so long as the Company Asset Sale or a Restricted Subsidiary enters into such commitment with the good faith expectation that such Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Net Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenantsuch Net Proceeds, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, Senior Revolving Debt or otherwise use invest such Applicable Net Proceeds in any manner that is not prohibited by the this Indenture.
(d) The amount equal to the Applicable . Any Net Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.not
Appears in 1 contract
Sources: Indenture (Kragen Auto Supply Co)
Asset Sales. (a) The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, consummate an any Asset Sale, Sale unless:
(1) The Company (or a Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (determined as of the time of contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of in such Asset Sale (such Fair Market Value to be determined by (i) an executive officer of the Company or such Subsidiary if the value is less than $50.0 million or (ii) in all other cases by a resolution of the Company’s Board of Directors (or of a committee appointed thereby for such purposes)); and
(2) At least 75% of the total consideration in such Asset Sale consists of cash or Cash Equivalents or Marketable Securities. For purposes of this provision, each of the following shall be deemed to be cash:
(A) the amount of any liabilities (as shown on the Company’s or the applicable Restricted Subsidiary’s most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes or the related Guarantees) that are assumed by the transferee of any such assets and from which the Company or such Restricted Subsidiary, as the case may be, receives consideration (including is validly released 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, is in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent 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 liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary)creditors;
(B) the amount of any securities, notes or other obligations or assets securities received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are within 180 days, subject to ordinary settlement periods, converted by the Company or a such Restricted Subsidiary into to 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 actually so received) within 180 days following the closing of such Asset Sale);
(C) the Fair Market Value of any assets (other than securities) received by the Company or any Restricted Subsidiary to be used by the Company or any Restricted Subsidiary in a Permitted Business; and
(D) any Designated Non-Cash cash Consideration received by the Company or a any Restricted Subsidiary in such an 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 (CD) that is at that time outstanding, not to exceed the greater of (i) $400.0 million 1.0% of the Company’s Consolidated Total Assets and (ii) 5.0% of Adjusted Consolidated Net Tangible Assets of the Company $25.0 million 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 Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and without giving effect to subsequent changes in value.
(b) If the Company or any Restricted Subsidiary engages in an Asset Sale, the Company or such Restricted Subsidiary shall apply all or any of the Net Proceeds therefrom to:
(1) repay Indebtedness under any Credit Facility, and in the case of any such repayment under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility, or repay Indebtedness (other than Disqualified Stock) of a Restricted Subsidiary that is not a Guarantor (other than Indebtedness owed to the Company);
(D2) Indebtedness (A) invest all or any part of any Restricted Subsidiary that ceases the Net Proceeds thereof in capital expenditures or the purchase of assets 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 and Gas Properties disposed of used by the Company or any Restricted Subsidiary in which the Company or any a Permitted Business, (B) acquire Equity Interests in a Person that is a Restricted Subsidiary retains an interest, or in a Person engaged primarily in a Permitted Business that shall become a Restricted Subsidiary immediately upon the costs and expenses related to the exploration, development, completion or production consummation of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee acquisition or (or an Affiliate thereof).
(bC) Within 365 days after the receipt a combination of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or repurchase:
(A) Obligations in respect of Senior Indebtedness; or
and (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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 to fund obligations of the foregoing.
(c) Company or any Restricted Subsidiary under the Partnership Parks Agreements. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantsuch Net Proceeds, the Company and its or such Restricted Subsidiaries Subsidiary may temporarily reduce Indebtednessrevolving indebtedness under a Credit Facility, if any, or otherwise use invest such Applicable Net Proceeds in any manner not prohibited by the this Indenture.
(dc) The amount equal to the Applicable Any Net Proceeds from any Asset Sales Sale that are not applied or invested (or applied committed pursuant to a written agreement to be applied) as provided and in the preceding paragraph within 365 days after the time receipt thereof and, in the case of any amount committed to a reinvestment, which are not actually so applied within 180 days following such 365-day period set forth in Section 4.10(b) will be deemed to shall constitute “Excess Proceeds”. .” When the aggregate cumulative amount of Excess Proceeds exceeds $50.0 25.0 million, within 30 days thereof, the Company will be obligated to make an offer Excess Proceeds Offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to at least $2,000, or an integral multiple of $1,000 in excess of $2,000, that may be purchased out of the such Excess Proceeds at an offer price, in the case of the Notes, price in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, if less), plus together with accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other price, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to, but excluding, interest to the date fixed for the closing of such offer, offer in accordance with the procedures set forth in Section 3.09 this Indenture. To the extent the Company or a Restricted Subsidiary is required under the terms of Indebtedness of the Company or such Restricted Subsidiary (orother than Subordinated Indebtedness), in respect the Company shall also make a pro rata offer to the holders of such Pari Passu Indebtedness, Indebtedness (including the agreement or instrument governing Notes) with such proceeds. If the terms thereof). The Company will commence an Asset Sale Offer with respect to Excess Proceeds within 30 days after the date that aggregate principal amount of Notes and other parity Indebtedness surrendered by holders thereof exceeds the amount of such Excess Proceeds exceeds Proceeds, the Trustee 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 may require), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $50.0 million by mailing or electronically delivering the notice required pursuant to Section 3.09, with a copy to the Trustee2,000, or otherwise an integral multiple of $1,000 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”excess thereof, will be purchased). 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 Excess Proceeds 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 such Excess Proceeds (or in the case of an Advance OfferProceeds, 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 general corporate purposes in compliance with the provisions of this Indenture. An Asset Sale Offer or Advance Offer may Upon completion of an Excess Proceeds Offer, the amount of Excess Proceeds shall be made reset at 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)zero.
(e) [Reserved].
(fd) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or and regulations are applicable in connection with the each repurchase of the Notes pursuant to required in the event of an Asset Sale Excess Proceeds Offer or Advance Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations described in this Indenture by virtue under Section 3.09 hereof as a result thereof.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Asset Sales. (ai) The Company Borrower will not, and will not permit any Restricted Subsidiary to, consummate cause, make or suffer to exist an Asset Sale, unless:
(1a) the Company Borrower or such Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at the time of contractually agreeing to such Asset Sale) Fair Market Value of the assets sold or otherwise disposed of; and;
(2b) 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), therefor received by the Company Borrower or a such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that each .
(ii) For purposes of this Section 9.5 and Section 2.3(b)(i), the following will be are deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):Equivalents:
(Aa) any liabilities (as shown on the Company’s Borrower’s, or any such Restricted Subsidiary’s most recent internally available 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 Companythereto) of the Company Borrower or any Restricted Subsidiary, Subsidiary (whether assumed or otherwise discharged) other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary)Loans;
(Bb) any securities, notes or other obligations or assets securities received by the Company Borrower or a such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company Borrower or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;; and
(Cc) any Designated Non-Cash Noncash Consideration received by the Company Borrower or a any 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 (Cc) that is at that time outstanding, not to exceed the greater of (ix) $400.0 200.0 million and (iiy) 5.03.0% of Adjusted Consolidated Net Tangible Total Assets of the Company at the time of the 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 Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Credit Agreement (Aircastle LTD)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1i) the Company or such the applicable Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) 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; andof (as determined in good faith by the Board of Directors of the Company);
(2ii) 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 the Restricted Subsidiary, as the case may be, is from such Asset Sale shall be in the form of cash or Cash Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):amount of:
(A) any liabilities (as shown on the Company’s or any such Restricted Subsidiary’s most recent 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 such Restricted Subsidiary, Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, ) that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary)assets;
(B) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale);
(C) any Designated Non-Cash cash Consideration received by the Company or a any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash cash Consideration received pursuant to this clause (Cc) that is at that time outstanding, not to exceed the greater of (i) $400.0 125.0 million and (ii) 5.03.0% of Adjusted Consolidated Net Tangible Total Assets of the Company at the time of the receipt of such Designated Non-Cash Consideration, cash Consideration (with the fair market value of each item of Designated Non-Cash cash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and 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
(FD) with respect to any Asset Sale Productive Assets; shall, in each of Oil (A), (B), (C) and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest(D) above, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed be deemed to be assumed by cash for the transferee (purposes of this provision or an Affiliate thereoffor purposes of Section 4.10(b).; and
(biii) Within 365 days after upon the receipt consummation of any Net Proceeds of any an Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company shall apply, or a cause such Restricted SubsidiarySubsidiary to apply, at its option, may apply an amount equal the Net Cash Proceeds relating to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or repurchaseAsset Sale within 365 days of receipt thereof:
(A) Obligations in respect to prepay Indebtedness under the Credit Facility (or other Indebtedness of Senior Indebtedness; or
the Company or a Guarantor secured by a Lien permitted by clause (B6) Obligations in respect of the definition of Permitted Liens) or Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Obligations owed .
(B) to reinvest in Productive Assets (provided that this requirement shall be deemed satisfied if the Company or such Restricted Subsidiary by the end of such 365-day period has entered into a Restricted Subsidiary; binding agreement under which it is contractually committed to reinvest in Productive Assets and such investment is consummated within 120 days from the date on which such binding agreement is entered into and, with respect to the amount of such investment, the reference to the 366th day after an Asset Sale in the second following sentence shall be deemed to be a reference to the 121st day after the date on which such binding agreement is entered into (but only if such 121st day occurs later than such 366th day)), or
(2C) to make a combination of prepayment and investment permitted by the foregoing clauses (aiii)(A) an Investment in and (iii)(B). Pending the final application of any one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in Net Cash Proceeds, the Company or any such Restricted Subsidiary owning may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds in Cash Equivalents. On the 366th day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines by Board Resolution not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses (iii)(A), (iii)(B) and (iii)(C) above (the “Asset Sale Offer Trigger Date”), such aggregate amount of the Capital Stock of such business such Net Cash Proceeds that it constitutes or continues to constitute a Restricted Subsidiaryhave not been applied as set forth in clauses (iii)(A), (biii)(B) capital expenditures, and (ciii)(C) other expenditures made with respect to Oil and Gas Properties, above on or before such Asset Sale Offer Trigger Date (deach an “Asset Sale Offer Amount”) acquisitions shall be applied by the Company or any such Restricted Subsidiary to make an offer to purchase (the “Asset Sale Offer”) on a date (the “Asset Sale Offer Payment Date”) not less than 30 nor more than 60 days following the applicable Asset Sale Offer Trigger Date, from all Holders and holders of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary other Indebtedness of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is ranking pari passu with the Notes requiring the making of such an offer (the “Pari Passu Indebtedness” and such offer, an “Asset Sale OfferDebt”), to purchase on a pro rata basis, the maximum aggregate principal amount of the Notes and such other Pari Passu Indebtedness that is in an amount equal to at least $2,000, or an integral multiple of $1,000 in excess of $2,000, Debt that may be purchased out of with the Excess Proceeds Asset Sale Offer Amount at an offer price, in the case of the Notes, in cash in an amount a price equal to 100% of the their principal amount thereof (or accreted value thereof, if less)amount, plus accrued and unpaid interestinterest thereon, if any any, to the date of purchase (or, in respect of such other Pari Passu IndebtednessDebt, such other lesser price, if any, as may be provided for by the terms of such Pari Passu IndebtednessDebt).
(b) If at any time any non-cash consideration (including any Designated Non-cash Consideration) received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), tothen such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10.
(c) Notwithstanding the foregoing, but excludingif the Asset Sale Offer Amount is less than $100.0 million, the application of the Net Cash Proceeds constituting such Asset Sale Offer Amount to an Asset Sale Offer may be deferred until such time as such Asset Sale Offer Amount plus the aggregate amount of all Asset Sale Offer Amounts arising subsequent to the Asset Sale Offer Trigger Date relating to such initial Asset Sale Offer Amount from all Asset Sales by the Company and its Restricted Subsidiaries aggregates at least $100.0 million, at which time the Company or such Restricted Subsidiary shall apply all Net Cash Proceeds constituting all Asset Sale Offer Amounts that have been so deferred to make an Asset Sale Offer (the first date fixed for the closing aggregate of all such offerdeferred Asset Sale Offer Amounts is equal to $100.0 million or more shall be deemed to be an Asset Sale Offer Trigger Date). Each Asset Sale Offer will be mailed to the record Holders as shown on the register of Holders within 30 days following the Asset Sale Offer Trigger Date, in accordance with a copy to the Trustee, and shall comply 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)hereof. The Company will commence an Asset Sale 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 Upon receiving 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 Offer, Holders may elect to the amount of all or a part of the available Applicable Proceeds tender their Notes 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 (whole or in the case part in a minimum of $1,000 or an Advance Offer, the Advance Portion), the Company and its Restricted Subsidiaries may use any remaining Excess Proceeds integral multiple of $1,000 in excess thereof (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, provided that no Note will select the Notes to be purchased in the manner described under Section 3.02 and the Company will select part if 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 Note would have a pro rata basis based on the accreted value or principal remaining 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 less than $2,000) 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.exchange for
Appears in 1 contract
Asset Sales. (a) The Company will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, consummate an Asset Sale, Sale unless:
(1i) at the time of any Asset Sale, no Default or Event of Default shall exist or shall result from such Asset Sale;
(ii) the Company (or such Restricted the Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such the Asset Sale) Sale at least equal to the fair market value Fair Market Value (measured at as of the time date of contractually agreeing the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2iii) except in the case of a Permitted Asset Swap, at least 75% of the consideration for such received in the Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), received Sale by the Company or a Restricted Subsidiary, as the case may be, such Subsidiary is in the form of cash or Cash Equivalents; provided that . For purposes of this clause (iii), each of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(A1) any liabilities (of the Company or any Subsidiary as shown on the Company’s or any Restricted such Subsidiary’s most recent 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 liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, ) that are (i) assumed by the transferee of any such assets (or a third party in connection with on behalf of such transfertransferee) pursuant to a customary novation or (ii) otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to agreement that releases the Company or a Restricted Subsidiary)such Subsidiary from further liability;
(B2) any securities, notes or other obligations or assets received by the Company or a Restricted any such Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a Restricted such Subsidiary into cash or Cash Equivalentswithin 180 days of the receipt thereof, 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 Salereceived in that conversion;
(C3) the assets of, or any Designated Non-Cash Consideration received by the Company or a Restricted Subsidiary in such Asset Sale having an aggregate fair market valueCapital Stock of, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is at that time outstandinganother Permitted Business, not to exceed the greater of (i) $400.0 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 Considerationif, 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 after giving effect to subsequent changes in value;
(D) Indebtedness any such acquisition 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 the Permitted Business is or capital or other expenditure becomes a Subsidiary of the kind referred to in Section 4.10(b)(2)Company; and
(F4) with respect to any Asset Sale of Oil and Gas Properties disposed of by the Company assets that are used or any Restricted Subsidiary useful in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof)a Permitted Business.
(b) Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or a Restricted the applicable Subsidiary, as the case may be, may apply such Net Proceeds at its option, may apply an amount equal to such Net Proceeds (in any combination of the “Applicable Proceeds”):following:
(1i) to prepay, repay, repurchase, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either defease (i) that are or will be used or useful in the Oil and Gas Business any Indebtedness of any Subsidiary 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offerthrough prepayments, open-market purchases, privately negotiated transactions or by making an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided for by the terms of such Pari Passu Indebtedness), to, but excluding, the date fixed for the closing of such offer, Offer in accordance with the procedures set forth in Section 3.09 8.1(a);
(orii) to acquire all or substantially all of the assets of, in respect or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of such Pari Passu IndebtednessCapital Stock, the agreement Permitted Business is or instrument governing becomes a Subsidiary of the terms thereofCompany; or
(iii) to acquire or invest in other assets that are used or useful in a Permitted Business or to make capital expenditures. Pending the final application of any Net Proceeds, the Company or the applicable Subsidiary, as the case may be, may temporarily reduce revolving credit borrowings.
(c) The amount of any Net Proceeds from Asset Sales that are not applied or invested within 365 days as provided in clause (b) above shall constitute “Excess Proceeds” and shall be applied in accordance with Section 8.1(a). The Company will commence an Upon completion of each Asset Sale Offer with respect pursuant to Excess Proceeds within 30 days after the date that Section 8.1(a), 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 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)zero.
(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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Note Exchange Agreement (Kingstone Companies, Inc.)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, consummate (a) sell, lease, convey or otherwise dispose of any assets (including by way of a Sale and Leaseback Transaction) other than sales of inventory in the ordinary course of business and consistent with past practice (provided, that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company shall be governed by the provisions of this Indenture set forth under Section 4.18 hereof or Article 5 hereof and not by the provisions of this Section 4.16) or (b) issue or sell Capital Stock of any of its Restricted Subsidiaries, in the case of either clause (a) or (b) above, whether in a single transaction or a series of related transactions that has a fair market value (as determined in good faith by the Board of Directors of the Manager) in excess of $1.0 million or for net cash proceeds of $1.0 million (each of the foregoing, an "Asset Sale"), unless:
unless (1i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at as determined in good faith by the time Board of contractually agreeing to such Asset SaleDirectors of the Manager) of the assets sold or otherwise disposed of; and
of and (2ii) 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), therefor received by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalentscash equivalents; provided provided, however, that each the amount of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s 's or any such Restricted Subsidiary’s 's most recent 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 Companythereto) of the Company or any Restricted Subsidiary, other than liabilities Subsidiary that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary);
and (B) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 90 days following the closing of such Asset Sale;
, shall be deemed to be cash for purposes of this provision; and provided further, that the 75% limitation referred to in this clause (Cii) shall not apply to any Asset Sale in which the cash portion of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (a) any Designated Nontransfer of assets or Capital Stock by the Company or any of its Restricted Subsidiaries to a Restricted Subsidiary of the Company, (b) any transfer of assets pursuant to a Permitted Investment, (c) the sale of Timberlands in a like-Cash Consideration kind exchange for a like interest in other Timberlands having a fair market value (as determined in good faith by the Board of Directors of the Manager) at least equal to the fair market value (as determined in good faith by the Board of Directors of the Manager) of the Timberlands sold, (d) the sale of not more than 10,000 acres in the aggregate of Timberlands designated in good faith by the Board of Directors of the Manager for a higher and better use, (e) a disposition of obsolete equipment in the ordinary course of business, (f) any sale of Capital Stock of, or Indebtedness or other securities of, an Unrestricted Subsidiary, and (g) timber deed, bulk, pay-as-cut and stumpage sales in the ordinary course of business. In the event that the aggregate Net Proceeds received by the Company or any of its Restricted Subsidiaries from one or more Asset Sales exceed the Adjusted Asset Sales Amount since the Issue Date, within 270 days after the date such aggregate Net Proceeds exceed such amount (or such longer period as may be required to comply with any agreement in effect on the Issue Date), the Company, at its option, shall apply the amount of such aggregate Net Proceeds (less the amount of any such Net Proceeds previously applied during such fiscal year for the purposes set forth in clauses (a) or (b) below) to (a) reduce senior Indebtedness of the Company or Indebtedness of a Restricted Subsidiary (with a permanent reduction of availability in such Asset Sale having an aggregate fair market valuethe case of the Working Capital Facility) or (b) make, taken together with all other Designated Non-Cash Consideration received or commit, pursuant to this clause a binding written contract (C) provided that the contract is at that time outstanding, not to exceed consummated substantially in accordance with the greater of (i) $400.0 million and (ii) 5.0% of Adjusted Consolidated Net Tangible Assets terms thereof within 30 days after the end of the Company at the time of the receipt of such Designated Non270-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 Subsidiaryday period), to make, an investment in assets used or useful in the extent that Business. Pending the Company and each other Restricted Subsidiary are released from final application of any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale;
(E) any InvestmentNet Proceeds, 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, borrowings under the Bank Credit Facility or otherwise use invest such Applicable Net Proceeds in any manner that is not prohibited by the Indenture.
(d) The amount equal to the Applicable . Any such Net Proceeds from Asset Sales that are not applied or invested or applied as provided and within in the time period set forth in Section 4.10(b) first sentence of this paragraph will be deemed to constitute “"Excess Proceeds”. ." When the aggregate amount of Excess Proceeds exceeds $50.0 10 million, the Company will Issuers shall make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “"Asset Sale Offer”), ") to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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 Proceeds, at an offer price, in the case of the Notes, price in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, 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 provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to the date fixed for the closing of such offerpurchase, 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). The Company will commence an Asset Sale 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”)Indenture. 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)Proceeds, the Company and its or any Restricted Subsidiaries Subsidiary may use any remaining Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in any manner not prohibited by this Indenturesuch deficiency for general business purposes. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the Pari Passu Indebtedness surrendered in an Asset Sale Offer by Holders thereof exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, will Trustee shall 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 denominationbasis. 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 shall 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 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)zero.
(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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Indenture (U S Timberlands Co Lp)
Asset Sales. (a) The Company will not, and will not permit any Restricted Subsidiary to, consummate cause or make, directly or indirectly, an Asset Sale, unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at as determined in good faith by the time Company on the date 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), therefor received by the Company or a such Restricted Subsidiary, as the case may be, is in the form of cash cash, Cash Equivalents or Cash Equivalentsassets of the type specified in clauses (3) and (4) of Section 4.10(b) (“Replacement Assets”) or any combination of the foregoing; provided that that, for purposes of this provision, each of the following will shall be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(A) any liabilities (other than Disqualified Stock and Indebtedness the repayment of which would constitute a Restricted Payment) (as shown on the Company’s ’s, or any such Restricted Subsidiary’s ’s, most recent 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 Companythereto) of the Company or any Restricted Subsidiary, other than liabilities Subsidiary that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 and for which the Company or a and all Restricted Subsidiary)Subsidiaries have been validly released by all creditors in writing;
(B) any securities, notes securities or other assets or obligations or assets received by the Company Company, a Guarantor or a such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;, and
(C) any Designated Non-Cash Noncash Consideration received by the Company or a any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Noncash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of (i) $400.0 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 ConsiderationTotal Assets, with the fair market value of each item of Designated Non-Cash Noncash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or measured at the time received and, in either case, and without giving effect to subsequent changes in value;
(D) Indebtedness of any Restricted Subsidiary that ceases , shall be deemed to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company cash 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof)Cash Equivalents.
(b) Within 365 days after the Company’s or a Restricted Subsidiary’s receipt of any Net Proceeds of any from an Asset Sale (as may be extended pursuant to clause (2) below, the “Asset other than a Sale Proceeds Application Period”of Fixed Assets Collateral or a Sale of a Guarantor), the Company or a such Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):from such Asset Sale to:
(1) to repay, repurchase or redeem or repurchase:any Indebtedness secured by a Permitted Prior Lien;
(A2) Obligations in respect of Senior Indebtedness; or
(B) Obligations in respect of to repay, repurchase or redeem Indebtedness and other obligations of a Restricted Subsidiary that is not a Guarantor, other than Obligations Indebtedness owed to the Company or another Restricted Subsidiary;
(3) to repay, repurchase or redeem other Indebtedness of the Company or any Guarantor (other than any Disqualified Stock or any Indebtedness that is contractually subordinated in right of payment to the Notes), other than Indebtedness owed to the Company or a Restricted SubsidiarySubsidiary of the Company; orprovided that the Company shall equally and ratably redeem or repurchase the Notes pursuant to Section 3.07 hereof, through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth in Section 3.09 hereof for an Asset Sale Offer) to all Holders to purchase the Notes at 100% of the principal amount thereof, in each case, plus the amount of accrued but unpaid interest and Additional Interest, if any, on the amount of Notes that would otherwise be purchased;
(24) to make an investment in (a) an Investment in any one or more businesses; provided that such Investment investment in any business is in the form of the acquisition of Capital Stock of such business such that it constitutes a Restricted Subsidiary and results if such Asset Sale was in respect of an asset of the Company or any Restricted Subsidiary owning an amount a Guarantor, the Company of such Capital Stock becomes a Guarantor, (b) capital expenditures or (c) acquisitions of other assets (other than cash and securities), in the case of each of clause (a), (b) and (c), used or useful in a Similar Business; provided, further, that, to the extent such investment is of the type which would constitute Collateral under the applicable Security Documents, such investment is concurrently added to the Collateral securing the Notes in the manner and to the extent required in this Indenture or any of the Security Documents; and/or
(5) to make an investment in (a) any one or more businesses; provided that such investment in any business is in the form of the acquisition of Capital Stock of such business such that it constitutes or continues to constitute a Restricted SubsidiarySubsidiary and if such Asset Sale consisted of an asset of the Company or a Guarantor, the Company of such Capital Stock becomes a Guarantor, (b) capital expenditures, properties or (c) other expenditures made with respect to Oil and Gas Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securitiesassets that, in the case of clauses
each of clause (a) ), (db) and this clause (ec), either (i) that are or will be used or useful in replace the Oil businesses, properties and Gas Business or (ii) that replace, in whole or in part, the properties or assets that are the subject of such Asset Sale; provided, further, that, to the extent such investment is of the type which would constitute Collateral under the applicable Security Documents, such investment is concurrently added to the Collateral securing the Notes in the manner and to the extent required in this Indenture or any of the Security Documents.
(c) Within 365 days after the Company’s or a Restricted Subsidiary’s receipt of Net Proceeds from an Asset Sale that constitutes a Sale of Fixed Assets Collateral or a Sale of a Guarantor, the Company or such Restricted Subsidiary, at its option, may apply such Net Proceeds from such Asset Sale to:
(1) to purchase other assets that would constitute Fixed Assets Collateral;
(2) to make an investment in (a) any one or more businesses; provided that such investment in any business is in the form of the acquisition of Capital Stock of such business such that it constitutes a Restricted Subsidiary and if such Asset Sale was in respect of an asset of the Company or a Guarantor, the Company of such Capital Stock becomes a Guarantor, (b) capital expenditures or (c) acquisitions of other assets (other than cash and securities), in the case of this each of clause (2a), (b) and (c), used or useful in a Similar Business; provided, further, that, to the extent such investment is of the type which would constitute Collateral under the applicable Security Documents, such investment is concurrently added to the Collateral securing the Notes in the manner and to the extent required in this Indenture or any of the Security Documents; and/or
(3) to repay Indebtedness secured by a Permitted Prior Lien on any Fixed Assets Collateral that was sold in such Asset Sale.
(d) Pending the final application of any Net Proceeds from Asset Sales in accordance with Section 4.10 (b) and (c) hereof the Company and its Restricted Subsidiaries may temporarily reduce revolving Indebtedness or otherwise apply such Net Proceeds in any manner not prohibited by this Indenture. Any binding commitment will to apply Net Proceeds to invest in accordance with Section 4.10(b)(4) or 4.10(b)(5) hereof and with Section 4.10(c)(1) and 4.10(c)(2) hereof in the immediately preceding paragraph, as the case may be, shall be treated as a permitted application of the Applicable Net Proceeds from the date of such commitment so long as the Company or a such Restricted Subsidiary enters into such commitment with the good faith expectation that such Applicable Net Proceeds will be applied to satisfy such commitment within 180 90 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds)commitment; provided, further, provided that if any such commitment is later cancelled canceled or terminated for any reason before such Applicable Net Proceeds are applied, then such Applicable Proceeds will shall constitute “Excess Proceeds Proceeds” (as defined belowin Section 4.10(e) hereof); or
(3) any combination of the foregoing.
(ce) Pending the final application of the amount of any Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Any Net Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in paragraphs (b) and (c) of this Section 4.10(b) 4.10 will be deemed to constitute “Excess Proceeds”. .” When the aggregate amount of Excess Proceeds exceeds $50.0 10.0 million, the Company will shall make an offer to all Holders Asset Sale Offer and, at the option of Company’s option, an offer to the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “other Permitted Fixed Asset Sale Offer”)Debt, to purchase or repay the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness (that is in an amount equal to at least $2,000, 2,000 or an integral multiple of $1,000 in excess of $2,000, thereof) and such other Permitted Fixed Asset Debt that may be purchased or repaid out of the Excess Proceeds at an offer price, in the case of the Notes, price in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other priceinterest and Additional Interest, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to 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)this Indenture. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within 30 ten business days after the date that the amount of Excess Proceeds exceeds $50.0 10.0 million by mailing or electronically delivering the notice required pursuant to Section 3.09the terms of this Indenture, 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 other Permitted Fixed Asset Debt tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds (or in the case of an Advance Offer, the Advance Portion)Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Proceeds (or in the case of an Advance Offer, the Advance Portionwhich shall also constitute “Unutilized Excess Proceeds”) in for any manner purpose not prohibited by the terms of this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or or the Pari Passu Indebtedness Permitted Fixed Asset Debt surrendered in an Asset Sale Offer by such holders thereof or to be repaid exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, will Trustee shall select the Notes and the applicable agent or the Company shall select such Permitted Fixed Asset Debt 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 denominationother Permitted Fixed Asset Debt tendered. Upon completion of any such Asset Sale Offer, for purposes of this provision the amount of Excess Proceeds (shall be reset at zero. After the Company or in any Restricted Subsidiary has applied the case of an Advance Offer, the Advance Portion) that resulted in the Net Proceeds from any Asset Sale Offer or Advance Offer will be reset to zero (regardless of whether there are as provided in, and within the time periods required by, this paragraph, any remaining Unutilized Excess Proceeds (or Advance Portion) upon such completion) and shall be released by the Collateral Trustee to the Company may or such Restricted Subsidiary for use any remaining Excess Proceeds by the Company or such Restricted Subsidiary for any purpose not otherwise prohibited under by this Indenture. An Asset Sale Offer or Advance Offer may be made at 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 such laws or regulations are applicable in connection with 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 the provisions of Section 3.09 hereof or this IndentureSection 4.10, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Asset Sales. No Borrower will sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it, except:
(a) The Company will notsales, transfers and dispositions of (i) Inventory in the ordinary course of business, and will not permit any Restricted Subsidiary to(ii) used, consummate an Asset Saleobsolete, unless:worn out or surplus equipment or property in the ordinary course of business;
(1b) the Company or such Restricted Subsidiarysales, as the case may be, receives consideration (including by way of relief from, or by transfers and dispositions to any other Person assuming responsibility forBorrower;
(c) sales, any liabilities, contingent or otherwise, transfers and dispositions of accounts receivable in connection with the compromise, settlement or collection thereof;
(d) sales, transfers and dispositions of Permitted Investments;
(e) sale and leaseback transactions permitted by Section 6.06;
(f) 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 any Borrower;
(g) non-exclusive licenses of intellectual property in the ordinary course of business;
(h) transfer of assets as a contribution to a joint venture so long as such Asset Sale) at least equal to contribution constitutes an Investment permitted by Section 6.04(q); provided that the fair market value (measured asset so transferred is not part of the Borrowing Base at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed ofcontribution; and
(2i) except sales, transfers and other dispositions of assets (other than the sale of Equity Interests that would result in a Change of Control) that are not permitted by any other paragraph of this Section, provided that the case aggregate fair market value of a Permitted Asset Swapall assets sold, transferred or otherwise disposed of in reliance upon this paragraph (i) shall not exceed $50,000,000 during any Fiscal Year of the Company; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (h) and (i) above) (i) shall be made for fair value and (ii) 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, is therefor shall be in the form of cash or Cash Equivalents; provided assets that each of the following will can be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent 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 liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets (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 the Company or a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are readily converted by the Company or a Restricted Subsidiary into cash or Cash Equivalentswithout discount within 90 days thereafter, 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;
(C) any Designated Non-Cash Consideration received by the Company or a Restricted Subsidiary in such Asset Sale having an aggregate fair market valueunless, taken together with all other Designated Non-Cash Consideration received pursuant respect to this clause (Cii), (x) that such asset is at that time outstanding, not to exceed the greater of (i) $400.0 million Collateral and (iiy) 5.0% of Adjusted Consolidated Net Tangible Assets of the Company at the time of the receipt of such Designated Non-Cash Considerationrelevant asset sale, with transfer, lease and other disposition occurs 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof)Payment Condition is satisfied.
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company or a Restricted Subsidiary, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or 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; or
(2) to make (a) an Investment in any one or more 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable 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 Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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 Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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, 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 provided 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). The Company will commence an Asset Sale 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 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, (i) sell, lease, convey or otherwise dispose of any assets (including by way of a sale and leaseback) other than sales of inventory in the ordinary course of business (provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company will be governed by Section 4.14 hereof and/or Section 5.01 hereof and not by the provisions of this Section 4.10), or (ii) issue or sell Equity Interests of any of its Restricted Subsidiaries, in the case of either clause (i) or (ii) above, whether in a single transaction or a series of related transactions, (a) The Company will notthat have a fair market value in excess of $1.0 million, and will not permit any Restricted Subsidiary toor (b) for net proceeds in excess of $1.0 million (each of the foregoing, consummate an "Asset Sale"), unless:
unless (1x) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at evidenced by an Officers' Certificate delivered to the time Trustee, and for Asset Sales having a fair market value or net proceeds in excess of contractually agreeing $5.0 million, evidenced by a Board Resolution delivered to such Asset Salethe Trustee) of the assets sold or otherwise disposed of; and
of and (2y) 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), therefor received by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents; provided provided, however, that each the amount of the following will be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(A) any liabilities (as shown on the Company’s 's or any such Restricted Subsidiary’s 's most recent 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 Companythereto) 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 Guarantor’s Guarantee of the Notes, Guarantee) that are (i) assumed by the transferee of any such assets (or pursuant to 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 customary novation agreement that releases the Company or a such Restricted Subsidiary);
Subsidiary from further liability and (B) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are immediately converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash received) or Cash Equivalents receivedEquivalents, shall be deemed to be cash for purposes of this provision; and provided, further, that the 75% limitation referred to in this clause (y) within 180 days following shall not apply to any Asset Sale in which the closing cash portion of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale;
Sale complied with the aforementioned 75% limitation. Notwithstanding the foregoing: (Ci) any Designated Non-Cash Consideration received a transfer of assets by the Company or to a Wholly Owned 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) $400.0 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 by a Wholly Owned 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 to another Wholly Owned Restricted Subsidiary, (ii) an issuance of Equity Interests (other than Disqualified Stock) by a Wholly Owned Restricted Subsidiary to the Company or another Wholly Owned Restricted Subsidiary, (iii) issuances of Equity Interests by the Company pursuant to warrants outstanding on the date of this Indenture, (iv) a Restricted Subsidiary)Payment that is permitted by Section 4.07 hereof, (v) the surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind (other than assignment of such rights or claims for value outside the ordinary course of business) or (vi) the grant in the ordinary course of business of any non-exclusive license of patents, trademarks, registration therefor and other similar intellectual property, will not be deemed to be an Asset Sale. In addition, notwithstanding the foregoing, the Company and any of its Restricted Subsidiaries may create or assume Liens (or permit any foreclosure thereon) securing Indebtedness 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 Lien does not violate Section 4.10(b)(2); and
(F) with respect to any Asset Sale of Oil and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof).
(b) 4.12 hereof. Within 365 270 days after the receipt of any Net Proceeds of from any Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company shall apply such Net Proceeds from such Asset Sale to permanently reduce Senior Debt in accordance with the terms of the Credit Agreement, if applicable, or a Restricted Subsidiaryto the extent not required to be applied thereunder, may, at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or repurchase:
(A) Obligations in respect of Senior Indebtedness; or
(B) Obligations in respect repayment of Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Obligations owed to (in the Company or case of Net Proceeds from an Asset Sale effected by a Restricted Subsidiary; or
(2) or to make (a) an Investment investment in any one a Restricted Subsidiary or more businesses; provided that such Investment in any another business is or capital expenditure or other long-term/tangible assets, in each case, in the form same or a similar line of the acquisition of Capital Stock and results in business as the Company or any of its 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, Subsidiaries were engaged in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas 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), a binding commitment will be treated as a permitted application of the Applicable Proceeds from on the date of such commitment so long as the Company this Indenture or a Restricted Subsidiary enters into such commitment with the good faith expectation that such Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is 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) in businesses reasonably related thereto. Pending the final application of the amount of any Applicable Proceeds pursuant to this covenantsuch Net Proceeds, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, Senior Debt or otherwise use invest such Applicable Net Proceeds in any manner that is not prohibited by the this Indenture.
(d) The amount equal to the Applicable . Any Net Proceeds from an Asset Sales Sale that are not applied or invested or applied as provided and within in the time period set forth in Section 4.10(b) first sentence of this paragraph will be deemed to constitute “"Excess Proceeds”". When the aggregate amount of Excess Proceeds exceeds $50.0 5.0 million, the Company will be required to make an offer Asset Sale Offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to 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 Proceeds, at an offer price, in the case of the Notes, price in cash in an amount equal to 100101% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other priceinterest and Liquidated Damages, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to, but excluding, thereon to the date fixed for the closing of such offerpurchase, 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). The Company will commence an Asset Sale 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”)hereof. 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 OfferProceeds, 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 Indenturegeneral corporate purposes. An Asset Sale Offer or Advance Offer may be made at If 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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of Notes surrendered by Holders thereof exceeds the then outstanding Notesamount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Sources: Indenture (Rayovac Corp)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, consummate an Asset Sale, Sale unless:
(1i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) Sale at least equal to the fair market value (measured at the time of contractually agreeing 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) the chief executive officer or chief financial officer of the Company, in the case of any Asset Sales or series of related Asset Sales having a Fair Market Value of less than $35.0 million, and (b) the Board of Directors of the Company and evidenced by a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate delivered to the Trustee, in the case of any Asset Sales or series of related Asset Sales having a Fair Market Value of $35.0 million or more; and
(2iii) 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), therefor received by the Company or a such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash cash, Cash Equivalents or Cash Equivalents; provided that Replacement Assets or a combination thereof. For purposes of this Section 4.10(a)(iii), each of the following will shall be deemed to be cash or Cash Equivalents for purposes of this Section 4.10(a)(2):cash:
(A) any liabilities (as shown on the Company’s 's or any such Restricted Subsidiary’s 's most recent 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, liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantor’s Note Guarantee and liabilities to the extent owed to the Company or any Affiliate of the Notes, Company) that are (i) assumed by the transferee of any such assets (or pursuant to 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 customary written agreement that releases the Company or a such Restricted Subsidiary);Subsidiary from further liability; and
(B) any securities, notes or other obligations or assets received by the Company or a any such Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are within 180 days (subject to ordinary settlement periods) converted by the Company or a such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(C) 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) $400.0 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 and Gas Properties disposed of by the Company or any Restricted Subsidiary in which the Company or any Restricted Subsidiary retains an interest, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereofconversion).
(b) Within 365 360 days after the receipt of any Net Proceeds of any from an Asset Sale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”)Sale, the Company or a Restricted Subsidiary, may apply such Net Proceeds at its option, may apply an amount equal to such Net Proceeds (the “Applicable Proceeds”):
(1) to repay, redeem or repurchase:
(Ai) Obligations to repay Indebtedness under the Credit Facilities or other Unsubordinated Indebtedness, in each case, secured by such assets, or Indebtedness Incurred under Section 4.09(b)(i), and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect of Senior Indebtedness; orthereto;
(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; or
(2ii) to make purchase Replacement Assets (a) an Investment in any one or more businessesenter into a binding agreement to purchase such Replacement Assets; provided that (x) such Investment in any business purchase is in consummated no later than the form later 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 Properties, (d) acquisitions by the Company or any Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company or any Restricted Subsidiary of other assets, other than securities, in the case of clauses
(a) (d) and this clause (e), either (i) that are or will be used or useful in the Oil and Gas Business 360th day after such Asset Sale 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), a binding commitment will be treated as a permitted application of the Applicable Proceeds from within 90 days after the date of such commitment binding agreement and (y) if such purchase is not consummated within the period set forth in subclause (x), the Net Proceeds not so long as the Company or a Restricted Subsidiary enters into such commitment with the good faith expectation that such Applicable Proceeds applied will be applied deemed to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Applicable Proceeds); provided, further, that if any such commitment is later cancelled or terminated for any reason before such Applicable Proceeds are applied, then such Applicable Proceeds will constitute be Excess Proceeds (as defined belowin Section 4.10(c))); or
(3iii) to apply such Net Proceeds (to the extent not applied pursuant to clauses (i) and (ii)) as provided in Section 4.10(c). Pending the final application of any combination of such Net Proceeds, the foregoingCompany may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture.
(c) Pending the final application of the amount of any Applicable Proceeds pursuant to this covenant, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited by the Indenture.
(d) The amount equal to the Applicable Any Net Proceeds from Asset Sales that are not applied or invested or applied as provided and within the time period set forth in Section 4.10(b) will be deemed to above shall constitute “Excess Proceeds”. When .” Within 30 days after the aggregate amount of Excess Proceeds exceeds $50.0 20.0 million, the Company will shall make an offer to all Holders and, at the option of the Company, to any holders of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness” and such offer, an “Asset Sale Offer”)) to all Holders of Notes and all holders of other Unsubordinated Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase with the proceeds of sales of assets, to purchase the maximum aggregate principal amount of the Notes and such Pari Passu other Unsubordinated Indebtedness that is in an amount equal to 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 Proceeds. The offer price, price in the case of the Notes, in cash in an amount any Asset Sale Offer shall be equal to 100% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other priceinterest and Liquidated Damages, if any, as may be provided for by the terms of such Pari Passu Indebtedness), to, but excluding, to the date fixed for the closing of such offerpurchase, and shall be payable in accordance with the procedures set forth in Section 3.09 (or, in respect cash. If any Excess Proceeds remain after consummation of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). The Company will commence an Asset Sale 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 such Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in for any manner purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the Pari Passu and such other Unsubordinated Indebtedness surrendered in an tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance OfferProceeds, 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 other Unsubordinated 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 shall be made selected on a pro rata basis based on the accreted value or principal amount of the Notes or and such Pari Passu other pari passu Indebtedness tendered with adjustments as necessary so that no Notes or Pari Passu Indebtedness will be repurchased in part in an unauthorized denominationtendered. Upon completion of any such each 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 shall 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 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)zero.
(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 such laws or regulations are applicable in connection with 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 the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations 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 may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
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Sources: Indenture (Texas Industries Inc)