Limitation on Dispositions. (a) The Company will not, and will not permit the Restricted Subsidiaries to, make any Asset Disposition 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) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); (2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), with a purchase price in excess of $50 million, at least 75% of the consideration from such Asset Disposition, together with all other Asset Dispositions since 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 or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and (3) not later than ten Business Days after the receipt of the Net Cash Proceeds (which, for the avoidance of doubt, shall commence on the earlier of (x) the end of the Reinvestment Period pursuant to and in accordance with clause (1)(b)(iv) of the definition of “Net Cash Proceeds” and (y) the receipt of Net Cash Proceeds under the Credit Agreement) from such Asset Disposition (or in the case of Deferred Net Cash Proceeds, within three Business Days after the earlier of (x) the Deferred Net Cash Proceeds Payment Date and (y) the receipt of Net Cash Proceeds under the Credit Agreement) (the period ending on the last day of such Reinvestment Period (or Deferred Net Cash Proceeds Payment Date) or on such other earlier date, as applicable, the “Proceeds Application Period”), the Company applies an amount equal to 100% of such Net Cash Proceeds: (i) (a) to the extent such Net Cash Proceeds are from an Asset Disposition of Collateral, (x) to reduce, prepay, repay or purchase any Pari Obligations (other than the Notes), including indebtedness under the Credit Agreement and the Secured Notes; provided that the Company ratably reduces, prepays, repays or purchases the Notes (if not prohibited by the Credit Agreement and the indenture governing the Secured Notes) by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer), redeem Notes or purchase Notes through open-market purchases or in privately negotiated transactions, (y) to reduce or repay ABL Obligations, if such Net Cash Proceeds are from an Asset Disposition of ABL Priority Collateral, or (z) to make an offer (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer), redeem Notes or purchase Notes through open-market purchases or in privately negotiated transactions (in each case, other than Indebtedness owed to the Company or any Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (i)(a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of any asset-based credit facility (including Indebtedness under the ABL Credit Agreement or any Refinancing Indebtedness in respect thereof) to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to be reduced in an amount equal to the principal amount so reduced, prepaid, repaid or purchased; (b) to the extent such Net Cash Proceeds are from an Asset Disposition that does not constitute Collateral, (w) to reduce, prepay, repay or purchase any Indebtedness secured by a Lien on such asset, (x) to reduce, prepay, repay or purchase Pari Passu Indebtedness (other than the Notes); provided, that the Company ratably reduces, prepays, repays or purchases the Notes (if not prohibited by the Credit Agreement and the indenture governing the Secured Notes) by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer), redeem Notes or purchase Notes through open-market purchases or in privately negotiated transactions, (y) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer), redeem Notes or purchase Notes through open-market purchases or in privately negotiated transactions, or (z) to reduce, prepay, repay or purchase any Indebtedness of a Non-Guarantor (in each case, other than Indebtedness owed to the Company or any Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (i)(b), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of any asset-based credit facility (including Indebtedness under the ABL Credit Agreement or any Refinancing Indebtedness in respect thereof) to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to be reduced in an amount equal to the principal amount so reduced, prepaid, repaid or purchased; or
Appears in 1 contract
Samples: Indenture (Avaya Holdings Corp.)
Limitation on Dispositions. (a) The Subject to the provisions of Article Eight, the Company will not, shall not make and will shall not permit the any of its Restricted Subsidiaries toor any Eligible Joint Venture to make, make any Asset Disposition unless:
unless (1i) the Company Company, the Restricted Subsidiary or such Restricted Subsidiarythe Eligible Joint Venture, 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) each such Asset Disposition at least equal to the fair market value of the Property or securities sold or otherwise disposed of (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the CompanyChief Financial Officer, of the shares and assets subject to such Asset Disposition (includingas evidenced by an Officers' Certificate, for the avoidance of doubtor, if such Asset Disposition is a Permitted Asset Swap);
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), with a purchase price in excess of more than $50 30 million, at least 75% by the Board of the consideration from such Asset DispositionDirectors, together with all other Asset Dispositions since the Issue Date (on as evidenced by a cumulative basisBoard resolution), (including by way ii) at least 85% of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) such consideration is received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and
Equivalents or, if less than 85%, the remainder of such consideration consists of Property related to the business of the Company as described in the first sentence of Section 1021, and (3iii) not later than ten Business Days after unless otherwise required under the receipt terms of Senior Debt, at the Company's election, the Net Cash Proceeds are either (whichA) invested in the business of the Company, for any of its Restricted Subsidiaries or any Eligible Joint Venture or (B) applied to the avoidance payment of doubtany Debt of the Company or of any of its Restricted Subsidiaries or any Eligible Joint Venture (or as otherwise required under the terms of such Debt), shall commence on the earlier provided that, no such payment of Debt (x) the end of the Reinvestment Period pursuant to and in accordance with clause (1)(b)(iv) of the definition of “Net Cash Proceeds” and (y) the receipt of Net Cash Proceeds under the Credit Agreement) from such Asset Disposition (or in the case of Deferred Net Cash Proceeds, within three Business Days after the earlier of (x) the Deferred Net Cash Proceeds Payment Date and (y) the receipt of Net Cash Proceeds under the Credit Agreement) (the period ending on the last day of such Reinvestment Period (or Deferred Net Cash Proceeds Payment Date) or on such other earlier date, as applicable, the “Proceeds Application Period”), the Company applies an amount equal to 100% of such Net Cash Proceeds:
(i) (a) to the extent such Net Cash Proceeds are from an Asset Disposition of Collateral, (x) to reduce, prepay, repay or purchase any Pari Obligations (other than the Notes), including indebtedness under the Credit Agreement and the Secured Notes; provided that the Company ratably reduces, prepays, repays or purchases the Notes (if not prohibited by the Credit Agreement and the indenture governing the Secured Notes) by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer), redeem Notes or purchase Notes through open-market purchases or in privately negotiated transactions, (y) to reduce or repay ABL Obligations, if such Net Cash Proceeds are from an Asset Disposition of ABL Priority Collateral, or (z) to make an offer (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer), redeem Notes or purchase Notes through open-market purchases or in privately negotiated transactions (in each case, other than Indebtedness owed to the Company Permitted Working Capital Facilities or any Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to other revolving credit agreement shall count for this clause (i)(a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause purpose unless the related commitment (other than obligations in respect of any asset-based credit loan commitment, standby facility (including Indebtedness under or the ABL Credit Agreement or any Refinancing Indebtedness in respect thereof) to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to like shall be permanently reduced in by an amount equal to the principal amount so reducedrepaid and (y) owed to the Company, prepaida Restricted Subsidiary thereof or an Eligible Joint Venture shall count for this purpose, repaid provided further that such investment or purchased;such payment, as the case may be, must be made within 365 days from the later of the date of such Asset Disposition or the receipt by the Company, such Restricted Subsidiary or such Eligible Joint Venture of the Net Cash Proceeds related thereto. Any Net Cash Proceeds from Asset Dispositions that are not applied as provided in clause (A) or (B) of the preceding sentence shall constitute "Excess Proceeds." Excess Proceeds shall be applied, as described below, to make an offer (an "Excess Proceeds Offer") to purchase Securities at a purchase price equal to 100% of the principal thereof, plus accrued interest, if any, to the date of purchase.
(b) Notwithstanding the provisions of Section 1015(a), the Company, its Restricted Subsidiaries and the Eligible Joint Ventures may exchange with other Persons (i) Property that constitutes a Restricted Subsidiary or an Eligible Joint Venture for Property that constitutes a Restricted Subsidiary or an Eligible Joint Venture, (ii) Property that constitutes a Restricted Subsidiary or an Eligible Joint Venture for Property that does not constitute a Restricted Subsidiary or an Eligible Joint Venture, (iii) Property that does not constitute a Restricted Subsidiary or an Eligible Joint Venture for Property that does not constitute a Restricted Subsidiary or an Eligible Joint Venture and (iv) Property that does not constitute a Restricted Subsidiary or an Eligible Joint Venture for Property that constitutes a Restricted Subsidiary or an Eligible Joint Venture, provided that in each case the fair market value of the Property received is at least equal to the fair market value of the Property exchanged as determined in good faith by the Chief Financial Officer, as evidenced by an Officers' Certificate, or, if more than $25 million, by the Board of Directors, as evidenced by a Board resolution, provided that the Investment in the Property received in the exchanges described in clauses (ii) and (iii) of the prior sentence shall be subject to Section 1010. Notwithstanding anything in the foregoing to the contrary, the Company may not, and shall not permit any of its Restricted Subsidiaries or any Eligible Joint Venture to, make an Asset Disposition of any of their interest in, or Property of, any of the three geothermal facilities located together at the Naval Weapons Center at China Lake, California, sometimes referred to as the "Coso Project," other than for consideration consisting solely of cash.
(c) To the extent that any or all of the Net Cash Proceeds of any Foreign Asset Disposition are prohibited from (or delayed in) being repatriated to the United States by applicable local law, the portion of such Net Cash Proceeds so affected shall not be required to be applied at the time provided above but may be retained by any Restricted Subsidiary or any Eligible Joint Venture so long, but only so long, as the applicable local law does not permit (or delays) repatriation to the United States. If such Net Cash Proceeds are from an transferred by the Restricted Subsidiary or Eligible Joint Venture that conducted the Foreign Asset Disposition that does Dispo- sition to another Restricted Subsidiary or Eligible Joint Venture, the Restricted Subsidiary or Eligible Joint Venture receiving such Net Cash Proceeds must not constitute Collateral, (w) be directly or indirectly obligated on any Debt owed to reduce, prepay, repay or purchase any Indebtedness secured by a Lien on such asset, (x) to reduce, prepay, repay or purchase Pari Passu Indebtedness (Person other than the Notes); providedCompany. The Company shall take or cause such Restricted Subsidiary or such Eligible Joint Venture to take all actions required by the applicable local law to permit such repatriation promptly. Once repatriation of any of such Net Cash Proceeds is permitted under the applicable local law, repatriation shall be effected immediately and the repatriated Net Cash Proceeds shall be applied in the manner set forth in this Section 1015(c) as if such Asset Disposition had occurred on the date of such repatriation. In addition, if the Chief Financial Officer determines, in good faith, as evidenced by an Officers' Certificate, that repatriation of any or all of the Company ratably reducesNet Cash Proceeds of any Foreign Asset Disposition would have a material adverse tax consequence to the Company, prepays, repays or purchases the Notes (if not prohibited Net Cash Proceeds so affected may be retained outside of the United States by the Credit Agreement and applicable Restricted Subsidiary or the indenture governing applicable Eligible Joint Venture for so long as such material adverse tax consequence would continue. Notwithstanding the Secured Notesforegoing provisions of this paragraph to the contrary, if applicable local law prohibits (or delays) by making an offer (in accordance with the procedures set forth below for an repatriation of Net Cash Proceeds of a Foreign Asset Disposition Offer), redeem Notes or purchase Notes through open-market purchases or in privately negotiated transactions, (y) to make an offer (in accordance with but such local law does not prohibit the procedures set forth below for an Asset Disposition Offer), redeem Notes or purchase Notes through open-market purchases or in privately negotiated transactions, or (z) to reduce, prepay, repay or purchase any Indebtedness application of a Non-Guarantor (in each case, other than Indebtedness owed such Net Cash Proceeds pursuant to the Company or any Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase first sentence of Indebtedness pursuant to this clause (i)(bSection 1015(a), the Company may apply such Net Cash Proceeds pursuant to such provision.
(d) If the Securities tendered pursuant to an Excess Proceeds Offer have an aggregate purchase price that is less than the Excess Proceeds available for the purchase of the Securities, the Company may use the remaining Excess Proceeds for general corporate purposes without regard to the provisions of this Section 1015(d). The Company shall not be required to make an Excess Proceeds Offer pursuant to this Section 1015 if the Excess Proceeds available therefor are less than $10 million, provided that the lesser amounts of such Excess Proceeds shall be carried forward and cumulated for each 36 consecutive month period for purposes of determining whether an Excess Proceeds Offer is re quired with respect to any Excess Proceeds of any subsequent Asset Dispositions. Any such lesser amounts so carried forward and cumulated need not be segregated or reserved and may be used for general corporate purposes, provided that such Restricted Subsidiary will retire such Indebtedness and will use shall not reduce the amount of cumulated Excess Proceeds or relieve the Company of its obligation hereunder to make an Excess Proceeds Offer with respect thereto.
(e) The Company shall make an Excess Proceeds Offer by mailing to each Holder, with a copy to the Trustee, within 30 days after the receipt of Excess Proceeds that cause the related commitment cumulated Excess Proceeds to exceed $10 million, a written notice that shall specify the purchase date, which shall not be less than 30 days nor more than 60 days after the date of such notice (other than obligations the "Excess Proceeds Purchase Date"), that shall contain certain information concerning the business of the Company that the Company believes in respect of any asset-based credit facility (including Indebtedness under good faith shall enable the ABL Credit Agreement or any Refinancing Indebtedness in respect thereof) Holders to make an informed decision and that shall contain information concerning the procedures applicable to the extent Excess Proceeds Offer (including, without limitation, the assets sold right of withdrawal) and the effect of such offer on the Securities tendered. Holders that elect to have their Securities purchased shall be required to surrender such Securities at least one Business Day prior to the Excess Proceeds Purchase Date. If at the expiration of the Excess Proceeds Offer period the aggregate purchase price of the Securities properly tendered by Holders pursuant to the Excess Proceeds Offer exceeds the amount of such Excess Proceeds, the Securities or otherwise disposed portions of in connection with such Asset Disposition constituted “borrowing base assets”) Securities to be reduced accepted for purchase shall be selected by the Trustee in such manner as the Trustee deems to be fair and appropriate in the circumstances. On the Excess Proceeds Purchase Date, the Company shall (i) accept for payment on a pro rata basis Securities or portions thereof tendered pursuant to the Excess Proceeds Offer, (ii) deposit with the Paying Agent money in immediately available funds sufficient to pay the aggregate purchase price of all the Securities or portions thereof so accepted and (iii) deliver to the Trustee Securities so accepted together with an Officers' Certificate stating the Securities or portions thereof tendered to the Company. The Paying Agent shall promptly mail to the Holders of each Security so accepted payment in an amount equal to the aggregate purchase price, and the Trustee shall promptly authenticate and mail to the Holders of each Security so accepted payment in an amount equal to the purchase price thereof, and the Trustee shall promptly authenticate and mail to such Holders new Securities equal in principal amount to any portion of the Security surrendered that was not purchased. The Company shall make a public announcement of the results of the Excess Proceeds Offer as soon as practicable after the Excess Proceeds Purchase Date. For the purposes of this Section 1015, the Trustee shall act as the Paying Agent. If the Company is prohibited by applicable law from making the Excess Proceeds Offer or purchasing Securities thereunder, the Company need not make an Excess Proceeds Offer pursuant to this Section 1015 for so reducedlong as such prohibition is in effect. The Company shall comply with all applicable tender offer rules, prepaidincluding, repaid or purchased; orwithout limitation, Rule 14e-1 under the Exchange Act, in connection with an Excess Proceeds Offer.
Appears in 1 contract
Samples: Indenture (Calenergy Co Inc)
Limitation on Dispositions. (a) The Subject to the provisions of Article Eight, the Company will not, shall not make and will shall not permit the any of its Restricted Subsidiaries toor any Eligible Joint Venture to make, make any Asset Disposition unless:
unless (1i) the Company Company, the Restricted Subsidiary or such Restricted Subsidiarythe Eligible Joint Venture, as the case may be, receives consideration (including by way at the time 100 of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) each such Asset Disposition at least equal to the fair market value of the Property or securities sold or otherwise disposed of (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the CompanyChief Financial Officer, of the shares and assets subject to such Asset Disposition (includingas evidenced by an Officers' Certificate, for the avoidance of doubtor, if such Asset Disposition is a Permitted Asset Swap);
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), with a purchase price in excess of more than $50 30 million, at least 75% by the Board of the consideration from such Asset DispositionDirectors, together with all other Asset Dispositions since the Issue Date (on as evidenced by a cumulative basisBoard resolution), (including by way ii) at least 85% of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) such consideration is received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and
Equivalents or, if less than 85%, the remainder of such consideration consists of Property related to the business of the Company as described in the first sentence of Section 1021, and (3iii) not later than ten Business Days after unless otherwise required under the receipt terms of Senior Debt, at the Company's election, the Net Cash Proceeds are either (whichA) invested in the business of the Company, for any of its Restricted Subsidiaries or any Eligible Joint Venture or (B) applied to the avoidance payment of doubtany Debt of the Company or of any of its Restricted Subsidiaries or any Eligible Joint Venture (or as otherwise required under the terms of such Debt), shall commence on the earlier provided that, no such payment of Debt (x) the end of the Reinvestment Period pursuant to and in accordance with clause (1)(b)(iv) of the definition of “Net Cash Proceeds” and (y) the receipt of Net Cash Proceeds under the Credit Agreement) from such Asset Disposition (or in the case of Deferred Net Cash Proceeds, within three Business Days after the earlier of (x) the Deferred Net Cash Proceeds Payment Date and (y) the receipt of Net Cash Proceeds under the Credit Agreement) (the period ending on the last day of such Reinvestment Period (or Deferred Net Cash Proceeds Payment Date) or on such other earlier date, as applicable, the “Proceeds Application Period”), the Company applies an amount equal to 100% of such Net Cash Proceeds:
(i) (a) to the extent such Net Cash Proceeds are from an Asset Disposition of Collateral, (x) to reduce, prepay, repay or purchase any Pari Obligations (other than the Notes), including indebtedness under the Credit Agreement and the Secured Notes; provided that the Company ratably reduces, prepays, repays or purchases the Notes (if not prohibited by the Credit Agreement and the indenture governing the Secured Notes) by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer), redeem Notes or purchase Notes through open-market purchases or in privately negotiated transactions, (y) to reduce or repay ABL Obligations, if such Net Cash Proceeds are from an Asset Disposition of ABL Priority Collateral, or (z) to make an offer (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer), redeem Notes or purchase Notes through open-market purchases or in privately negotiated transactions (in each case, other than Indebtedness owed to the Company Permitted Working Capital Facilities or any Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to other revolving credit agreement shall count for this clause (i)(a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause purpose unless the related commitment (other than obligations in respect of any asset-based credit loan commitment, standby facility (including Indebtedness under or the ABL Credit Agreement or any Refinancing Indebtedness in respect thereof) to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to like shall be permanently reduced in by an amount equal to the principal amount so reducedrepaid and (y) owed to the Company, prepaida Restricted Subsidiary thereof or an Eligible Joint Venture shall count for this purpose, repaid provided further that such investment or purchased;such payment, as the case may be, must be made within 365 days from the later of the date of such Asset Disposition or the receipt by the Company, such Restricted Subsidiary or such Eligible Joint Venture of the Net Cash Proceeds related thereto. Any Net Cash Proceeds from Asset Dispositions that are not applied as provided in clause (A) or (B) of the preceding sentence shall constitute "Excess Proceeds." Excess Proceeds shall be applied, as described below, to make an offer (an "Excess Proceeds Offer") to purchase Securities of any series at a purchase price equal to 100% of the principal thereof, plus accrued interest, if any, to the date of purchase.
(b) Notwithstanding the provisions of Section 1015(a), the Company, its Restricted Subsidiaries and the Eligible Joint Ventures may exchange with other Persons (i) Property that constitutes a Restricted Subsidiary or an Eligible Joint Venture for Property that constitutes a Restricted Subsidiary or an Eligible Joint Venture, (ii) Property that constitutes a Restricted Subsidiary or an Eligible Joint Venture for Property that does not constitute a Restricted Subsidiary or an Eligible Joint Venture, (iii) Property that does not constitute a Restricted Subsidiary or an Eligible Joint Venture for Property that does not constitute a Restricted Subsidiary or an Eligible Joint Venture and (iv) Property that does not constitute a Restricted Subsidiary or an Eligible Joint Venture for Property that constitutes a Restricted Subsidiary or an Eligible Joint Venture, provided that in each case the fair market value of the 101 Property received is at least equal to the fair market value of the Property exchanged as determined in good faith by the Chief Financial Officer, as evidenced by an Officers' Certificate, or, if more than $25 million, by the Board of Directors, as evidenced by a Board resolution, provided that the Investment in the Property received in the exchanges described in clauses (ii) and (iii) of the prior sentence shall be subject to Section 1010. Notwithstanding anything in the foregoing to the contrary, the Company may not, and shall not permit any of its Restricted Subsidiaries or any Eligible Joint Venture to, make an Asset Disposition of any of their interest in, or Property of, any of the three geothermal facilities located together at the Naval Weapons Center at China Lake, California, sometimes referred to as the "Coso Project," other than for consideration consisting solely of cash.
(c) To the extent that any or all of the Net Cash Proceeds of any Foreign Asset Disposition are prohibited from (or delayed in) being repatriated to the United States by applicable local law, the portion of such Net Cash Proceeds so affected shall not be required to be applied at the time provided above but may be retained by any Restricted Subsidiary or any Eligible Joint Venture so long, but only so long, as the applicable local law does not permit (or delays) repatriation to the United States. If such Net Cash Proceeds are from an transferred by the Restricted Subsidiary or Eligible Joint Venture that conducted the Foreign Asset Disposition that does to another Restricted Subsidiary or Eligible Joint Venture, the Restricted Subsidiary or Eligible Joint Venture receiving such Net Cash Proceeds must not constitute Collateral, (w) be directly or indirectly obligated on any Debt owed to reduce, prepay, repay or purchase any Indebtedness secured by a Lien on such asset, (x) to reduce, prepay, repay or purchase Pari Passu Indebtedness (Person other than the Notes); providedCompany. The Company shall take or cause such Restricted Subsidiary or such Eligible Joint Venture to take all actions required by the applicable local law to permit such repatriation promptly. Once repatriation of any of such Net Cash Proceeds is permitted under the applicable local law, repatriation shall be effected immediately and the repatriated Net Cash Proceeds shall be applied in the manner set forth in this Section 1015(c) as if such Asset Disposition had occurred on the date of such repatriation. In addition, if the Chief Financial Officer determines, in good faith, as evidenced by an Officers' Certificate, that repatriation of any or all of the Company ratably reducesNet Cash Proceeds of any Foreign Asset Disposition would have a material adverse tax consequence to the Company, prepays, repays or purchases the Notes (if not prohibited Net Cash Proceeds so affected may be retained outside of the United States by the Credit Agreement and applicable Restricted Subsidiary or the indenture governing applicable Eligible Joint Venture for so long as such material adverse tax consequence would continue. Notwithstanding the Secured Notesforegoing provisions of this paragraph to the contrary, if applicable local law prohibits (or delays) by making an offer (in accordance with the procedures set forth below for an repatriation of Net Cash Proceeds of a Foreign Asset Disposition Offer), redeem Notes or purchase Notes through open-market purchases or in privately negotiated transactions, (y) to make an offer (in accordance with but such local law does not prohibit the procedures set forth below for an Asset Disposition Offer), redeem Notes or purchase Notes through open-market purchases or in privately negotiated transactions, or (z) to reduce, prepay, repay or purchase any Indebtedness application of a Non-Guarantor (in each case, other than Indebtedness owed such Net Cash Proceeds pursuant to the Company or any Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase first sentence of Indebtedness pursuant to this clause (i)(bSection 1015(a), the Company may apply such Net Cash Proceeds pursuant to such provision.
(d) If the Securities tendered pursuant to an Excess Proceeds Offer have an aggregate purchase price that is less than the Excess Proceeds available for the purchase of the Securities, the Company may use the remaining Excess Proceeds for general corporate purposes without regard to the provisions of this Section 1015(d). The Company shall not be required to make an Excess Proceeds Offer pursuant to this Section 1015 if the Excess Proceeds available therefor are less than $10 million, provided that the lesser amounts of such Excess Proceeds shall be carried forward and cumulated for each 36 consecutive month period for purposes of determining whether an Excess Proceeds Offer is required with respect to any Excess Proceeds of any subsequent Asset Dispositions. Any such lesser amounts so carried forward and cumulated need not be segregated or reserved and may be used for general corporate purposes, provided that such Restricted Subsidiary will retire such Indebtedness and will use shall not reduce the amount of cumulated Excess Proceeds or relieve the Company of its obligation hereunder to make an Excess Proceeds Offer with respect thereto.
(e) The Company shall make an Excess Proceeds Offer by mailing to each Holder, with a copy to the Trustee, within 30 days after the receipt of Excess Proceeds that cause the related commitment cumulated Excess Proceeds to exceed $10 million, a written notice that shall specify the purchase date, which shall not be less than 30 days nor more than 60 days after the date of such notice (other than obligations the "Excess Proceeds Purchase Date"), that shall contain certain information concerning the business of the Company that the Company believes in respect good faith shall enable the Holders to make an informed decision and that shall contain information concerning the procedures applicable to the Excess Proceeds Offer (including, without limitation, the right of withdrawal) and the effect of such offer on the Securities tendered. Holders that elect to have their Securities purchased shall be required to surrender such Securities at least one Business Day prior to the Excess Proceeds Purchase Date. If at the expiration of the Excess Proceeds Offer period the aggregate purchase price of the Securities of the series properly tendered by Holders pursuant to the Excess Proceeds Offer exceeds the amount of such Excess Proceeds, the Securities of such series or portions of Securities to be accepted for purchase shall be selected by the Trustee in such manner as the Trustee deems to be fair and appropriate in the circumstances. On the Excess Proceeds Purchase Date, the Company shall (i) accept for payment on a pro rata basis Securities of any asset-based credit facility (including Indebtedness under the ABL Credit Agreement series or any Refinancing Indebtedness in respect thereof) portions thereof tendered pursuant to the extent Excess 103 Proceeds Offer, (ii) deposit with the assets sold Paying Agent money in immediately available funds sufficient to pay the aggregate purchase price of all the Securities of such series or otherwise disposed portions thereof so accepted and (iii) deliver to the Trustee Securities so accepted together with an Officers' Certificate stating the Securities of in connection with such Asset Disposition constituted “borrowing base assets”) series or portions thereof tendered to be reduced the Company. The Paying Agent shall promptly mail to the Holders of each Security so accepted payment in an amount equal to the aggregate purchase price, and the Trustee shall promptly authenticate and mail to the Holders of each Security so accepted payment in an amount equal to the purchase price thereof, and the Trustee shall promptly authenticate and mail to such Holders new Securities of the same series equal in principal amount to any portion of the Security surrendered that was not purchased. The Company shall make a public announcement of the results of the Excess Proceeds Offer as soon as practicable after the Excess Proceeds Purchase Date. For the purposes of this Section 1015, the Trustee shall act as the Paying Agent. If the Company is prohibited by applicable law from making the Excess Proceeds Offer or purchasing Securities of any series thereunder, the Company need not make an Excess Proceeds Offer pursuant to this Section 1015 for so reducedlong as such prohibition is in effect. The Company shall comply with all applicable tender offer rules, prepaidincluding, repaid or purchased; orwithout limitation, Rule 14e-1 under the Exchange Act, in connection with an Excess Proceeds Offer.
Appears in 1 contract
Samples: Indenture (Calenergy Co Inc)
Limitation on Dispositions. No Restricted Person will Dispose of any of its material assets or properties or any material interest therein, except:
(a) The Company will notequipment that is worthless or obsolete or worn out in the ordinary course of business, which is no longer used or useful in the conduct of its business or which is replaced by equipment of equal suitability and will not permit the Restricted Subsidiaries to, make any Asset Disposition 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) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap)value;
(2b) inventory that is sold in the ordinary course of business on ordinary trade terms;
(c) Equity of any of Borrower’s Subsidiaries that is transferred to Borrower or a wholly-owned Subsidiary of Borrower;
(d) Dispositions of property by (i) Borrower to any Guarantor and (ii) any Subsidiary to Borrower or to a wholly-owned Subsidiary of Borrower; provided that if the transferor of such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition property is a Permitted Asset Swap)Guarantor, with the transferee thereof must either be Borrower or a purchase price in excess of $50 million, at least 75% of the consideration from such Asset Disposition, together with all other Asset Dispositions since 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 or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; andGuarantor;
(3e) not later than ten Business Days after the receipt of Dispositions and Casualty Events, the Net Cash Proceeds of which are (whichi) reinvested within 180 days of such Disposition or Casualty Event in Midstream Assets (or, for the avoidance of doubtif committed to be reinvested, shall commence on the earlier of (x) within 90 days after the end of such 180-day period), or (ii) otherwise applied to repay the Reinvestment Period pursuant Loans to and in accordance with clause the extent required by Section 2.7(b).
(1)(b)(ivf) Dispositions (whether by asset sales or by merger) that meet all of the definition of “Net Cash Proceeds” and (y) the receipt of Net Cash Proceeds under the Credit Agreement) from such Asset Disposition (or in the case of Deferred Net Cash Proceeds, within three Business Days after the earlier of (x) the Deferred Net Cash Proceeds Payment Date and (y) the receipt of Net Cash Proceeds under the Credit Agreement) (the period ending on the last day of such Reinvestment Period (or Deferred Net Cash Proceeds Payment Date) or on such other earlier date, as applicable, the “Proceeds Application Period”), the Company applies an amount equal to 100% of such Net Cash Proceedsfollowing requirements:
(i) at the time of such Disposition, no Default or Event of Default shall exist or would result from such Disposition,
(aii) the purchase price for such Disposition shall be at fair market value (as reasonably determined by the Board of Managers of the Borrower and, if requested by the Administrative Agent, the Borrower shall deliver a certificate of a Responsible Officer of the Borrower certifying to the extent such Net Cash Proceeds are from an Asset Disposition of Collateral, (x) to reduce, prepay, repay or purchase any Pari Obligations (other than the Notesthat effect), including indebtedness under and
(iii) the Credit fair market value of the property Disposed, when aggregated with all Dispositions made during the term of this Agreement and the Secured Notes; provided that the Company ratably reduces, prepays, repays or purchases the Notes (if not prohibited by the Credit Agreement and the indenture governing the Secured Notes) by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer), redeem Notes or purchase Notes through open-market purchases or in privately negotiated transactions, (y) to reduce or repay ABL Obligations, if such Net Cash Proceeds are from an Asset Disposition of ABL Priority Collateral, or (z) to make an offer (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer), redeem Notes or purchase Notes through open-market purchases or in privately negotiated transactions (in each case, other than Indebtedness owed to the Company or any Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (i)(af), does not exceed $15,000,000. Following any such Disposition, the Company or such Restricted Subsidiary will retire such Indebtedness Borrower must make any mandatory prepayment required under this Agreement as and will cause when so required.
(g) Dispositions resulting from the related commitment (other than obligations in respect granting of any asset-based credit facility (including Indebtedness under the ABL Credit Agreement or any Refinancing Indebtedness in respect thereof) to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to be reduced in an amount equal to the principal amount so reduced, prepaid, repaid or purchasedLiens permitted by Section 5.2;
(bh) to Dispositions resulting from the extent such Net Cash Proceeds are making of Investments permitted by Section 5.7; and
(i) Dispositions resulting from an Asset Disposition that does not constitute Collateral, (w) to reduce, prepay, repay or purchase any Indebtedness secured the making of Distributions permitted by a Lien on such asset, (x) to reduce, prepay, repay or purchase Pari Passu Indebtedness (other than the Notes); provided, that the Company ratably reduces, prepays, repays or purchases the Notes (if not prohibited by the Credit Agreement and the indenture governing the Secured Notes) by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer), redeem Notes or purchase Notes through open-market purchases or in privately negotiated transactions, (y) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer), redeem Notes or purchase Notes through open-market purchases or in privately negotiated transactions, or (z) to reduce, prepay, repay or purchase any Indebtedness of a Non-Guarantor (in each case, other than Indebtedness owed to the Company or any Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (i)(b), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of any asset-based credit facility (including Indebtedness under the ABL Credit Agreement or any Refinancing Indebtedness in respect thereof) to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to be reduced in an amount equal to the principal amount so reduced, prepaid, repaid or purchased; orSection 5.6.
Appears in 1 contract
Samples: Credit Agreement (Unit Corp)
Limitation on Dispositions. (a) The Company Issuer will not, and will not permit the Restricted any of its Material Subsidiaries to, make any consummate an Asset Disposition Sale unless:
(1i) All such Assets Sales consummated since the Funding Date do not exceed $47,500,000 in the aggregate;
(ii) the Company Issuer (or such Restricted a Material 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) such Asset Sale at least equal to the fair market value Fair Market Value (such fair market value to be determined on measured as of the date of contractually agreeing the definitive agreement with respect to such Asset Disposition), as determined in good faith by the Company, Sale) of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap)or Equity Interests issued or sold or otherwise disposed of;
(2iii) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), with a purchase price in excess of $50 million, at least 75% of the aggregate consideration from received in respect of such Asset Disposition, together with Sale by the Issuer and its Material Subsidiaries and all other Asset Dispositions Sales since 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 or such Restricted Subsidiary, as the case may be, is in the form of cash Cash or Cash EquivalentsEquivalents (or a combination thereof) but excluding Cash held in escrow; provided that, for purposes of this provision, each of the following will be deemed to be cash;
(A) any liabilities, as shown on the Issuer’s most recent consolidated balance sheet, of the Issuer or any Material Subsidiary (other than contingent liabilities, Subordinated Debt and any obligations in respect of preferred stock) that are assumed by the transferee of any such assets or Equity Interests pursuant to customary agreements (or other legal documentation with the same effect) that includes a full release or indemnity of the Issuer or such Material Subsidiary from any and all liability therefor;
(B) any securities, notes or other obligations received by the Issuer or any such Material Subsidiary from such transferee that are converted by the Issuer or such Material Subsidiary into Cash within 90 days after the date of the Asset Sale, to the extent of the cash received in that conversion; and
(3C) not later than ten Business Days after with respect to any Asset Sale of oil and gas properties by the receipt Issuer or a Material Subsidiary in which the Issuer or such Material Subsidiary retains an interest, any agreement by the transferee (or any Affiliate thereof) to pay all or a portion of the Net costs and expenses related to the exploration, development, completion or production of such properties and activities related thereto. Notwithstanding the foregoing, the 75% limitation referred to in clause (iii) above shall be deemed satisfied with respect to any Asset Sale in which the Cash Proceeds (which, for the avoidance of doubt, shall commence on the earlier of (x) the end or Cash Equivalents portion of the Reinvestment Period pursuant to and consideration received therefrom, determined in accordance with clause (1)(b)(iviii) of above on an after-tax basis, is equal to or greater than what the definition of “Net Cash Proceeds” and (y) the receipt of Net Cash Proceeds under the Credit Agreement) from after-tax proceeds would have been had such Asset Disposition (or in the case of Deferred Net Cash Proceeds, within three Business Days after the earlier of (x) the Deferred Net Cash Proceeds Payment Date and (y) the receipt of Net Cash Proceeds under the Credit Agreement) (the period ending on the last day of such Reinvestment Period (or Deferred Net Cash Proceeds Payment Date) or on such other earlier date, as applicable, the “Proceeds Application Period”), the Company applies an amount equal to 100% of such Net Cash Proceeds:
(i) (a) to the extent such Net Cash Proceeds are from an Asset Disposition of Collateral, (x) to reduce, prepay, repay or purchase any Pari Obligations (other than the Notes), including indebtedness under the Credit Agreement and the Secured Notes; provided that the Company ratably reduces, prepays, repays or purchases the Notes (if not prohibited by the Credit Agreement and the indenture governing the Secured Notes) by making an offer (in accordance Sale complied with the procedures set forth below for an Asset Disposition Offer), redeem Notes or purchase Notes through open-market purchases or in privately negotiated transactions, (y) to reduce or repay ABL Obligations, if such Net Cash Proceeds are from an Asset Disposition of ABL Priority Collateral, or (z) to make an offer (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer), redeem Notes or purchase Notes through open-market purchases or in privately negotiated transactions (in each case, other than Indebtedness owed to the Company or any Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (i)(a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of any asset-based credit facility (including Indebtedness under the ABL Credit Agreement or any Refinancing Indebtedness in respect thereof) to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to be reduced in an amount equal to the principal amount so reduced, prepaid, repaid or purchased;
(b) to the extent such Net Cash Proceeds are from an Asset Disposition that does not constitute Collateral, (w) to reduce, prepay, repay or purchase any Indebtedness secured by a Lien on such asset, (x) to reduce, prepay, repay or purchase Pari Passu Indebtedness (other than the Notes); provided, that the Company ratably reduces, prepays, repays or purchases the Notes (if not prohibited by the Credit Agreement and the indenture governing the Secured Notes) by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer), redeem Notes or purchase Notes through open-market purchases or in privately negotiated transactions, (y) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer), redeem Notes or purchase Notes through open-market purchases or in privately negotiated transactions, or (z) to reduce, prepay, repay or purchase any Indebtedness of a Non-Guarantor (in each case, other than Indebtedness owed to the Company or any Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (i)(b), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of any asset-based credit facility (including Indebtedness under the ABL Credit Agreement or any Refinancing Indebtedness in respect thereof) to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to be reduced in an amount equal to the principal amount so reduced, prepaid, repaid or purchased; oraforementioned 75% limitation.
Appears in 1 contract
Samples: Note Purchase Agreement (Bellatrix Exploration Ltd.)
