Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at least equal to the fair market value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity and assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).
Appears in 3 contracts
Samples: Indenture (Denbury Resources Inc), Supplemental Indenture (Denbury Resources Inc), Indenture (Denbury Resources Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless unless: (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market including as to the value to be of all non-cash consideration), as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; (2) (A) at least 7580% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) firstFIRST, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than any Disqualified Stock) of a Wholly-CB Richard or any Wholly Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness xxxx Xxxxxtedness owed to the Company or an Affiliate of the Company) within 540 days fifteen months from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) secondSECOND, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) thirdTHIRD, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer Offer to the Holders holders of the Securities (and to holders of other Senior unsubordinated Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior unsubordinated Indebtedness of the Company) pursuant to and subject to the conditions contained of Section 4.6(b); PROVIDED, HOWEVER, that in this Indentureconnection with any prepayment, which repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, the Company or such Restricted Subsidiary shall permanently reduces retire such Indebtedness and shall cause the outstanding amount of such Securities related loan commitment (and such other Senior Indebtednessif any) to be permanently reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 4.6, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 4.6(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.6(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.07(a4.6(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.6(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (which may include Priority Lien Debt)2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
Appears in 3 contracts
Samples: Koll Donald M, Cb Richard Ellis Services Inc, Cb Richard Ellis Services Inc
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person or group of Persons assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), Fair Market Value of the equity shares and assets subject to such Asset Disposition; , (2ii) (A) in the case of Asset Dispositions which are not Permitted Asset Swaps, at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalentscash, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) within 365 days after the later of the date of such Asset Disposition or the receipt of such Net Available Cash (A1) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem purchase, repurchase, redeem, retire, defease or purchase Senior otherwise acquire for value Bank Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified obligations in respect of Preferred Stock) of a Wholly-Wholly Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later Company and other than obligations in respect of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchasedDisqualified Stock); (B2) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A1), to the extent the Company or such Restricted Subsidiary elects, to acquire reinvest in Additional Assets or to make capital expenditures (including by means of an Investment in the Oil and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Additional Assets by a Restricted Subsidiary with Net Available CashCash received by the Company or another Restricted Subsidiary); and (C3) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A1) and (B2), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) Offer to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indentureof Section 4.06(b); provided, which purchase permanently reduces however, that if the outstanding amount Company elects (or is required by the terms of such Securities (and such any other Senior Indebtedness), such Offer may be made ratably to purchase the Securities and other Senior Indebtedness of the Company; and (4) fourth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (1), (2) and (3), for any general corporate purpose permitted by the terms of this Indenture; provided, however, that in connection with any prepayment, repayment, purchase, repurchase, redemption, retirement, defeasance or other acquisition for value of Indebtedness pursuant to clause (1), (2) or (4) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid, purchased, repurchased, retired, defeased or otherwise acquired for value. Pending application Notwithstanding the foregoing provisions of this Section 4.06, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash pursuant to in accordance with this Section 4.07(a), such 4.06(a) except to the extent that the aggregate Net Available Cash shall from all Asset Dispositions that is not applied in accordance with this Section 4.06(a) exceeds $20.0 million. For the purposes of this Section 4.06, the following are deemed to be invested cash: (A) the assumption of Indebtedness of the Company (other than obligations in Temporary Cash Investments respect of Disqualified Stock of the Company) or applied to temporarily reduce revolving credit any Restricted Subsidiary (other than obligations in respect of Disqualified Stock and Preferred Stock of a Restricted Subsidiary that is a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (which may include Priority Lien Debt)B) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 90 days of receipt.
Appears in 2 contracts
Samples: Supplemental Indenture (Dex Media International Inc), Supplemental Indenture (Dex Media Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company Holdings shall not, and shall not permit the Company or any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) Holdings, the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market Fair Market Value (including as to the value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), all non-cash consideration) of the equity shares and assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration thereof received by Holdings, the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Temporary Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition)Investments; and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by Holdings (or the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms Holdings elects, within 365 days of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment(i) to reduce the outstanding principal amount of Permitted Indebtedness Incurred pursuant to Section 4.03(b)(1); (ii) to reduce the outstanding principal amount of any other Senior Indebtedness of Holdings, repaymentthe Company or any Subsidiary Guarantor; provided, redemption or purchase permanently retireshowever, or reduces that the related loan commitment (if any) for, such Indebtedness in an amount equal to Company shall equally and ratably reduce the principal amount so prepaidof Securities outstanding, repaidthrough open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or through redemption, redeemed or purchasedshall offer (in accordance with the procedures set forth below in Section 4.06(b)) to all Holders to purchase their Securities at 100% of the principal amount thereof, plus accrued but unpaid interest, if any, in an aggregate principal amount which, if the offer were accepted, would result in such reduction; or (iii) to reduce Indebtedness of a Restricted Subsidiary that is not a Guarantor; in each case other than Indebtedness owed to Holdings or an Affiliate of Holdings; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company Holdings elects, to acquire Additional Assets or to make any other capital expenditures in the Oil and Gas respect of a Related Business within 540 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders of the Securities (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture; provided, which however, that in connection with any prepayment, repayment or purchase permanently reduces of Indebtedness pursuant to clause (A) or (C) above, Holdings, the outstanding amount of Company or such Securities Restricted Subsidiary shall cause the related loan commitment (and such other Senior Indebtednessif any) to be reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. The requirement of Section 4.06(a)(3)(B) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by Holdings, the Company or any of its Restricted Subsidiaries within the time period specified in Section 4.06(a)(3)(A) and such Net Available Cash is subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Notwithstanding the foregoing provisions of this Section 4.06, Holdings, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 4.06 except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06 exceeds $20,000,000. Pending application of Net Available Cash pursuant to this Section 4.07(a)4.06, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness. For the purposes of Section 4.06(a)(2), the following are deemed to be cash or Temporary Cash Investments: (i) the assumption or discharge of Indebtedness of Holdings (which may include Priority Lien Debtother than obligations in respect of Disqualified Stock of Holdings), the Company or any Restricted Subsidiary (other than obligations in respect of Disqualified Stock or Preferred Stock of the Company or a Restricted Subsidiary that is a Subsidiary Guarantor) and the release of Holdings, the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition; (ii) any securities received by Holdings, the Company or any Restricted Subsidiary from the transferee that are converted by Holdings, the Company or such Restricted Subsidiary into cash within ninety (90) days after such Asset Disposition, to the extent of the cash received in that conversion; and (iii) any Designated Non-cash Consideration received by Holdings, the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (3) that is at that time outstanding, not to exceed the greater of (1) $50,000,000 and (2) 4% of Consolidated Net Tangible Assets of Holdings, the Company and the Restricted Subsidiaries at the time of the receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
Appears in 2 contracts
Samples: Indenture (Murphy USA Inc.), Indenture (Murphy USA Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company and the Guarantors shall not, and shall not permit any Restricted Subsidiary of their Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, consummate any Asset Disposition unless of its property, business or assets, including by merger or consolidation (1) in the Company or such Restricted case of a Subsidiary receives consideration at least equal to of the fair market value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provisionCompany), and including any sale or other transfer or issuance of any Equity Interests of any Subsidiary of the equity and assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration received Company, whether by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to of either or through the Company issuance, sale or an Affiliate transfer of Equity Interests by a Subsidiary of the Company, and including any sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless (l)(a) the Net Cash Proceeds therefrom (the "Asset Sale Offer Amount") are applied (i) within 540 270 days from the later of after the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal Sale to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent optional redemption of the balance of such Net Available Cash after application Securities in accordance with clause (A)the terms of this Indenture and other Indebtedness of the Company ranking on a parity with the Securities and with similar provisions requiring the Company to redeem such Indebtedness with the proceeds for asset sales, pro rata in proportion to the extent the Company elects, to acquire Additional Assets respective principal amounts (or to make capital expenditures accreted values in the Oil case of Indebtedness issued with an original issue discount) of the Securities and Gas Business such other Indebtedness then outstanding or (ii) within 540 300 days from the later of after the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, Sale to the extent repurchase of the balance of Securities and such Net Available Cash after application in accordance other Indebtedness on a parity with clauses (A) the Securities and (B), with similar provisions requiring the Company to make an offer to purchase such Indebtedness with the Holders proceeds for asset sales pursuant to a cash offer (subject only to conditions required by applicable law, if any) (pro rata in proportion to the respective principal amounts (or accreted values in the case of Indebtedness issued with an original issue discount) of the Securities and such other Indebtedness then outstanding) (the "Asset Sale Offer") at a purchase price of 100% of principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to holders the date of payment, made within 270 days of such Asset Sale or (b) within 270 days following such Asset Sale, the Asset Sale Offer Amount is (i) invested (or committed, pursuant to a binding commitment subject only to reasonable, customary closing conditions, to be invested, and in fact is so invested, within an additional 90 days) in tangible assets and property other Senior Indebtedness than notes, bonds, obligations and securities) which in the good faith reasonable judgment of the Board will immediately constitute or be a part of a Related Business of the Company designated by or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction or (ii) used to retire Purchase Money Indebtedness, Mortgage Indebtedness or Senior Debt and, to permanently reduce (in the Companycase of Senior Debt that is not Purchase Money Indebtedness or Mortgage Indebtedness) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities Indebtedness, incurred under Section 4.11 hereof (including that in the case of a revolver or similar arrangement that makes credit available, such commitment is so permanently reduced by such amount), (2) at least 90% of the consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents, (3) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a PRO FORMA basis, to, such other Senior Indebtedness) in an amount equal to Asset Sale, and (or greater than4) the principal amount purchasedBoard of Directors of the Company determines in good faith that the Company or such Subsidiary, as applicable, receives fair market value for such Asset Sale. Pending application Notwithstanding, and without complying with, the provisions of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).covenant:
Appears in 2 contracts
Samples: Tia Indenture (Wichita Manufacturing Inc), Compass Aerospace LTD
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at least equal to the fair market value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity and assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration received by the Company or 44 such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, (i) if the assets subject to such Asset Disposition constitute Collateral, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Priority Lien Debt and other outstanding Priority Lien Obligations or Parity Lien Debt and other outstanding Parity Lien Obligations (in each case, other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased (and, with respect to Parity Lien Debt, such prepayment, repayment, redemption or purchase must be made either (x) for Securities only or (y) for Securities and other Parity Lien Debt, and in the case of subclause (y), by a pro rata prepayment, repayment or redemption of outstanding Securities and such other Parity Lien Debt or by an offer to purchase on a pro rata basis made to all holders of Securities and such other Parity Lien Debt) or (ii) if the assets subject to such Asset Disposition do not constitute Collateral, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor in each case that is Secured Debt or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided that, without limitation of the provisions of Section 10.03, any such Additional Assets, including the assets of any Person that becomes a Subsidiary Guarantor as a result of such transaction, acquired with Net Available Cash from an Asset Disposition of Collateral are, to the extent required by the Priority Lien Documents or the Security Documents (and pursuant to the terms thereof), pledged as Collateral; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness Parity Lien Debt of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness Parity Lien Debt of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior IndebtednessParity Lien Debt) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).
Appears in 2 contracts
Samples: Intercreditor Agreement (Denbury Resources Inc), Indenture (Denbury Resources Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless: (1) in the case of any Asset Disposition involving shares or assets having a value equal to or in excess of $1.0 million, the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at least equal to the fair market value (such fair market value to be determined in advance on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; (2) (A) in the case of any Asset Disposition involving shares or assets having a value equal to or in excess of $1.0 million, at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition)Equivalents; and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) : (Aa) first, to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Senior Indebtedness or Guarantor Senior Indebtedness), to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or any Indebtedness of a Restricted Subsidiary Guarantor or Indebtedness (other than any Disqualified Stock) Stock or Guarantor Senior Subordinated Indebtedness or Guarantor Subordinated Obligation of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor Guarantor) (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; and (Cb) thirdsecond, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (BSection 3.7(a)(3)(a), to make an offer the extent the Company or such Restricted Subsidiary elects, to invest in Additional Assets within 360 days from the Holders (and to holders of other Senior Indebtedness later of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount date of such Securities (and Asset Disposition or the receipt of such other Senior Indebtedness) in an amount equal to (or greater than) Net Available Cash; provided that pending the principal amount purchased. Pending final application of Net Available Cash pursuant to this Section 4.07(a), any such Net Available Cash shall be invested in Temporary Cash Investments accordance with Section 3.7(a)(3)(a) or applied to Section 3.7(a)(3)(b) above, the Company and its Restricted Subsidiaries may temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
Appears in 2 contracts
Samples: Indenture (NBC Acquisition Corp), Indenture (Nebraska Book Co)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market including the value to be of all non-cash consideration), as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; (2) (A) , and at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); equivalents and (3ii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects in its sole discretion (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior (and permanently reduce the commitments under) Indebtedness of under the Company New Credit Agreement or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed otherwise secured by its assets subject to the Company or an Affiliate of the Company) such Asset Disposition within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces Cash (the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased"Receipt Date"); (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company electselects in its sole discretion, to acquire Additional Assets; provided, however, that the Company shall be required to commit such Net Available Cash to the acquisition of Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days one year from the later of the date of such Asset Disposition or the receipt Receipt Date and shall be required to consummate the acquisition of such Net Available CashAdditional Assets within 18 months from the Receipt Date; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer pursuant to paragraph (b) below to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) Notes pursuant to and subject to the conditions contained in this IndentureIndenture (an "Asset Sale Offer"); and (D) fourth, which purchase permanently reduces to the outstanding amount extent of the balance of such Securities Net Available Cash after application in accordance with clauses (A), (B) and such (C) to any other Senior Indebtedness) application or use not prohibited by this Indenture. Notwithstanding the foregoing provisions of this paragraph, the Company and the Restricted Subsidiaries shall not be required to apply the Net Available Cash in an accordance with this paragraph except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this paragraph exceeds $5 million (at which time, the entire unutilized Net Available Cash, and not just the amount equal in excess of $5 million, shall be applied pursuant to (or greater than) the principal amount purchasedthis paragraph). Pending application of Net Available Cash pursuant to this Section 4.07(a)covenant, such Net Available Cash shall be invested in Permitted Investments. For the purposes of this covenant, the following are deemed to be cash or cash equivalents: (x) the express assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition, (y) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 90 days of closing the transaction and (z) Temporary Cash Investments or applied Investments. Notice of an Asset Sale Offer shall be mailed by the Company not more than 20 Business Days after the obligation to temporarily reduce revolving credit Indebtedness make such Asset Sale Offer arises to the Holders of Notes at their last registered addresses with a copy to the Trustee and the Paying Agent. The Asset Sale Offer shall remain open from the time of mailing for at least 20 Business Days and until 5:00 p.m., New York City time, on the date fixed for Purchase of Notes validly tendered and not withdrawn, which date shall be not later than the 30th Business Day following the mailing of such Asset Sale Offer (the "Asset Sale Offer Purchase Date"). The notice, which may shall govern the terms of the Asset Sale Offer, shall include Priority Lien Debt).such disclosures as are required by law and shall state:
Appears in 2 contracts
Samples: Spincycle Inc, Spincycle Inc
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, to consummate any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market including as to the value to be of all noncash consideration), as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; , and (2) (Aii) at least 75% (or 100% in the case of lease payments) of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, . In the “event and to the extent that the aggregate Net Available Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its or any Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Subsidiary from one or more Asset Disposition occurring on or after the Issue Date exceeds $10,000,000, then the Company or such Restricted Subsidiary shall (A) within 360 days after giving effect to the receipt of such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, and to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Senior Indebtedness), ) to (1) apply an amount equal to such excess Net Available Cash to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (such Restricted Subsidiary, in each case owing to a Person other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company or an any Affiliate of the Company, or (2) invest (or enter into a binding commitment to invest, provided that such commitment shall be subject -------- only to customary conditions (other than financing) and such investment shall be consummated within 540 360 days from after the later of the date end of such Asset Disposition 360-day period) an equal amount, or the receipt amount not so applied pursuant to clause (1), in Additional Assets (including by means of such an Investment in Additional Assets by a Restricted Subsidiary with Net Available CashCash received by the Company or another Restricted Subsidiary) and (B) apply such excess Net Available Cash (to the extent not applied pursuant to clause (A)), provided such to make an Offer (as defined below) to purchase Securities pursuant to and subject to the conditions of Section 4.06(b); provided, however, that in connection with any prepayment, repayment, redemption repayment or purchase permanently retires-------- ------- of Senior Indebtedness pursuant to clause (A) above, the Company or reduces such Restricted Subsidiary shall retire such Senior Indebtedness and shall cause the related loan commitment (if any) for, such Indebtedness to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed repaid or purchased; (B) secondprovided further, however, ---------------- ------- that the Company or such Restricted Subsidiary shall not be required to permanently reduce the extent related loan commitment in the case of the balance any such prepayment, repayment or purchase with Net Available Cash from any Asset Disposition of Non-Core Assets, so long as an amount equal to 100% of such Net Available Cash after application is invested in accordance with Additional Assets within the period required pursuant to clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days from the later of the date B) above. The amount of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such excess Net Available Cash after application in accordance with clauses (A) and required to be applied pursuant to clause (B), to make an offer to the Holders () above and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchasednot theretofore so applied shall constitute "Excess Proceeds". Pending application of Net Available Cash pursuant to this Section 4.07(a)covenant, such Net Available Cash shall be invested in Temporary Cash Investments Investments. For the purposes of clause (ii) this Section 4.06(a), the following are deemed to be cash: (x) the assumption of Indebtedness of the Company or applied any Restricted Subsidiary (other than Indebtedness that by its terms is subordinated to temporarily reduce revolving credit the Notes or the applicable Subsidiary Guaranty) and the release of the Company and the Restricted Subsidiaries from all liability on such Indebtedness in connection with such Asset Disposition and (which may include Priority Lien Debt)y) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
Appears in 2 contracts
Samples: Indenture (Nabco Inc /Mi/), Delco Remy International Inc
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset 17 Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; Disposition and (2) (Aii) at least 7580% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets Cash Equivalents. With respect to any Asset Disposition occurring on or after the Issue Date from which the Company or any combination thereof (collectivelyRestricted Subsidiary receives Net Available Cash, the “Cash Consideration”) Company or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its such Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) Subsidiary shall apply an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) firstat its election, to the extent the Company elects either (or is required by the terms of any Indebtedness), to i) prepay, repay, redeem repay or purchase Senior Indebtedness (other than any Subordinated Obligations or Preferred Stock) of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (Cii) third, to invest in Additional Assets within 365 days from the extent later of the balance date of such Asset Disposition or the receipt of such Net Available Cash after application in accordance with clauses Cash; or (Aiii) and (B), to make an offer to purchase the Holders Securities at 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase; PROVIDED, HOWEVER, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (i) above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to holders be permanently reduced to the extent required by the Senior Credit Agreement. Notwithstanding the foregoing provisions, the Company and its Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this covenant exceed $1.0 million. Any Net Available Cash from an Asset Disposition that is not invested or applied as provided and within the time period set forth in the first sentence of this paragraph (a) will be deemed to constitute "Excess Proceeds." For the purposes of this SECTION 3.6 and for no other Senior purpose, the following will be deemed to be cash: (x) the assumption by the transferee of Indebtedness (other than Subordinated Obligations) of the Company designated or Indebtedness of any Restricted Subsidiary of the Company and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness or Indebtedness in connection with such Asset Disposition (in which case the Company will, without further action, be deemed to have applied such deemed cash amount in accordance with clause (i) of the preceding paragraph) and (y) securities received by the Company) to purchase Securities (and such other Senior Indebtedness Company or any Restricted Subsidiary of the Company) pursuant to and subject to Company from the conditions contained in this Indenture, which purchase permanently reduces transferee that are promptly converted by the outstanding amount of Company or such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)Restricted Subsidiary into cash.
Appears in 2 contracts
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer the Company's senior management or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; (2) (Aii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company or any Subsidiary elects (or is required by the terms of any Senior Indebtedness or Guarantor Senior Indebtedness), to prepay, repay, redeem repay or purchase (x) Senior Indebtedness of the Company or any Subsidiary Guarantor Senior Indebtedness or (y) Indebtedness (other than Disqualified Stock) of a Wholly-Wholly Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 180 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, within one year from the receipt of such Net Available Cash, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), at the Company's election either (x) to the extent the Company elects, to acquire investment in or acquisition of Additional Assets or (y) to make capital expenditures prepay, repay or purchase (1) Senior Indebtedness or Guarantor Senior Indebtedness or (2) Indebtedness of a Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Oil and Gas Business Company); (C) third, within 540 45 days from after the later of the application of Net Available Cash in accordance with clauses (A) and (B) and the date of such Asset Disposition or that is one year from the receipt of such Net Available Cash, to the extent of the balance of such Net Available Cash after application and in accordance with clauses (A) and (B), to make an offer to purchase 11 3/4% Senior Subordinated Notes at par plus accrued and unpaid interest, if any, thereon in accordance with the provisions of the 11 3/4% Senior Subordinated Indenture; (D) fourth, within 45 days of the later of the Application of Net Available Cash in accordance with clauses (A), (B) and (C) thirdand the date that is one year from the receipt of such Net Available Cash, to the extent if the balance of such Net Available Cash after application and in accordance with clause (A), (B) and (C), to make an offer to purchase Securities at par plus accrued and unpaid interest, if any, thereon; and (E) fifth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and ), (B), (C) and (D), to (w) the investment in or acquisition of Additional Assets; (x) the making of Temporary Cash Investments, (y) the prepayment, repayment or purchase of Indebtedness of the Company or Indebtedness of any Subsidiary (other than Indebtedness owed to the Company) or (z) any other purpose otherwise permitted under this Indenture, in each case within the later of 45 days after the application of Net Available Cash in accordance with clauses (A), (B), (C) and (D) and the date that is one year from the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clauses (A), (B), (C), (D) or (E) above, the Company or such Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions, the Company and its Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this covenant at any time exceed $10.0 million. The Company shall not be required to make an offer for Securities pursuant to this covenant if the Net Available Cash available therefor (after application of the proceeds as provided in clauses (A), (B) and (C)) is less than $10.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an offer is required with respect to the Holders Net Available Cash from any subsequent Asset Disposition). For the purposes of this covenant, the following will be deemed to be cash: (and to holders x) the assumption by the transferee of other Senior Indebtedness of the Company designated or Indebtedness of any Subsidiary of the Company and the release of the Company or such Subsidiary from all liability on such Senior Indebtedness or Indebtedness in connection with such Asset Disposition (in which case the Company shall, without further action, be deemed to have applied cash to repay such assumed Indebtedness in accordance with clause (A) of the preceding paragraph) and (y) securities received by the Company) to purchase Securities (and Company or any Subsidiary from the transferee that are promptly converted by the Company or such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)Subsidiary into cash.
Appears in 2 contracts
Samples: Indenture (International Wire Group Inc), Indenture (Wire Harness Industries Inc)
Limitation on Sales of Assets and Subsidiary Stock. The Company and the Subsidiary Guarantors will not sell, assign, farm-out, convey or otherwise transfer any Property except for: (a) The Company shall not, the sale of Hydrocarbons in the ordinary course of business; (b) farmouts of undeveloped acreage and shall not permit any Restricted Subsidiary to, directly assignments in connection with such farmouts; (c) the sale or indirectly, consummate any Asset Disposition unless (1) transfer of equipment that is no longer necessary for the business of the Company or such Restricted the Subsidiary receives consideration Guarantors or is replaced by equipment of at least equal comparable value and use; (d) a disposition by a Subsidiary Guarantor to the fair market value (such fair market value to be determined in advance in good faith by an Officer Borrower or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity and assets subject Borrower or a Subsidiary Guarantor to such Asset Dispositiona Subsidiary Guarantor; (2e) a disposition of cash, cash equivalents or other financial assets; (Af) at least 75an issuance of Equity Interests by a Subsidiary Guarantor to the Borrower or to a Subsidiary Guarantor; (g) any casualty or condemnation event (other than a Casualty Event described in clause (i) of this Section 7.03); (h) the making of a Restricted Payment permitted by Section 7.23 or a Permitted Investment; (i) the sale or other disposition (including Casualty Events) of any Oil and Gas Property or any interest therein or any Subsidiary owning Oil and Gas Properties; provided, however that (i) 100% of the consideration received in respect of such sale or other disposition shall be cash; provided, however, that the consideration received in respect of any sale or other disposition of undeveloped real property that is owned by the Company located in Bienville, Bossier, Caddo, DeSoto, Natchitoches, Red River, Sabine and Xxxxxxx Parishes, Louisiana and Angelina, Cherokee, Xxxxx, Xxxxxxxx, Xxxxxx, Nacogdoches, Panola, Xxxx, Xxxxxx, San Xxxxxxxxx, Xxxxxx, Xxxxx and Xxxxxx Counties, Texas may be other Oil and Gas Properties, which shall be equivalent on a net revenue interest acre basis and limited to other undeveloped Oil and Gas Properties located in Bienville, Bossier, Caddo, DeSoto, Natchitoches, Red River, Sabine and Xxxxxxx Parishes, Louisiana and Angelina, Cherokee, Xxxxx, Xxxxxxxx, Xxxxxx, Nacogdoches, Panola, Xxxx, Xxxxxx, San Xxxxxxxxx, Xxxxxx, Xxxxx and Xxxxxx Counties, Texas in order to facilitate future development of the field(s), and which will subsequently be mortgaged in accordance with Section 14.07; (ii) the consideration received in respect of such sale or such Restricted Subsidiary is in the form of cash other disposition shall be equal to or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) greater than the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days from Property, interest therein or Subsidiary subject of such sale or other disposition (as reasonably determined by the later board of directors of the date Company and, if requested by the Trustee, the Company shall deliver a certificate of a Responsible Officer certifying to that effect) and (iii) if any such sale or other disposition is of a Subsidiary owning Oil and Gas Properties, such sale or other disposition shall include all the Equity Interests of such Asset Disposition or the receipt of such Net Available CashSubsidiary; and (Cj) thirdsales and other dispositions of Properties not regulated by subsections (a) to (i) of this Section 7.26 having a fair market value not to exceed $1,000,000 during any 12-month period; provided, to the extent of the balance however that any net cash proceeds of such Net Available Cash after application in accordance with clauses sale or disposition permitted by the foregoing clause (Ai) and or this clause (B), j) are used to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated prepayments or reinvested as required by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt3.08(a).
Appears in 2 contracts
Samples: Indenture (Goodrich Petroleum Corp), Intercreditor Agreement (Goodrich Petroleum Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) either (x) in the case of any Asset Disposition, the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value value, as may be determined (such and shall be determined, to the extent an Asset Disposition involves a fair market value to be determined in advance greater than $10,000,000) in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which whose determination shall will be conclusive evidence and evidenced by a resolution of compliance with this provisionthe Board of Directors (including as to the value of all non-cash consideration), of the equity shares and assets subject to such Asset Disposition; , or (2y) in the case of a Financing Disposition, the Board of Directors shall have determined in good faith, which determination will be conclusive and evidenced by a resolution of the Board of Directors, that such Financing Disposition is economically fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and in the best interest of the Company or such Restricted Subsidiary and its respective creditors, (Aii) in the case of any Asset Disposition having a fair market value of $10,000,000 or more, at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof Cash Equivalents (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable with respect to an Asset Disposition (after giving effect to such Asset Dispositionconsisting of an exchange of equipment for use in related lines of business, a Financing Disposition or a Fiskeby Transaction); , and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition (other than any Financing Disposition relating to any Receivables Financing) is applied by the Company (or such Restricted Subsidiary, as the case may be) as follows: (A) firstFirst, to the extent the Company elects (or is required by the terms of any IndebtednessSenior Indebtedness (other than the 1997 Notes or the Securities) or Indebtedness (other than Preferred Stock) of a Restricted Subsidiary), to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stockthe 1997 Notes or the Securities) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor or such Indebtedness (in each case other than Indebtedness owed to the Company or an Affiliate of the Companya Restricted Subsidiary) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).365 days
Appears in 2 contracts
Samples: Supplemental Indenture (Riverwood Holding Inc), Supplemental Indenture (Riverwood Holding Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in 51 45 good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); Equivalents and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Senior Indebtedness), to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified any Preferred Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 180 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), at the Company's election to the extent the Company elects, to acquire investment in Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application and in accordance with clauses (A) and (B), to make an offer to purchase (an "Offer") the Securities and other pari passu debt obligations subject to a similar covenant (collectively, the "pari passu debt obligations" at par plus accrued and unpaid interest, if any, thereon; and (D) fourth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C), for other general corporate purposes not prohibited by this Indenture; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions, the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this covenant exceed $500,000. The Company shall not be required to make an Offer for the Securities and for the pari passu debt obligations pursuant to this covenant if the Net Available Cash available therefor (after application of the proceeds as provided in clauses (A) and (B), to make ) are less than $5 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an offer Offer is required with respect to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debtfrom any subsequent Asset Disposition).
Appears in 2 contracts
Samples: NBC Acquisition Corp, Nebraska Book Co
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company UCAR International shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company UCAR International or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market including as to the value to be of all non-cash consideration), as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of DirectorsDirectors (or, which if the fair market value is less than $25.0 million, the chief financial officer) of UCAR International, whose good faith determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration thereof received by the Company UCAR International or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company UCAR International (or such Restricted Subsidiary, as the case may be) (A) firstFIRST, to the extent the Company UCAR International elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company Company, any Guarantor or any Subsidiary Guarantor Intercompany Note Obligor or Indebtedness (other than any Disqualified Stock) of a Wholly-Owned any other Subsidiary that is not a Wholly Owned Subsidiary Guarantor (in each case other than Indebtedness owed to the Company UCAR International or an Affiliate of the CompanyUCAR International) within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) secondSECOND, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company UCAR International elects, to acquire or commit to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; PROVIDED, HOWEVER, that if UCAR International elects to commit to acquire Additional Assets, such acquisition shall be consummated no later than six months after the end of such one year period; and (C) thirdTHIRD, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders of the Securities (and to holders of other Senior Indebtedness of the Company Company, any Guarantor or any Intercompany Note Obligor designated by the CompanyUCAR International) to purchase Securities (and such other Senior Indebtedness of the CompanyIndebtedness) pursuant to and subject to the conditions contained in this IndentureSection 4.06(c); PROVIDED, which HOWEVER, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C), UCAR International or such Restricted Subsidiary shall permanently reduces retire such Indebtedness and shall cause the outstanding amount of such Securities related loan commitment (and such other Senior Indebtednessif any) to be permanently reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid, redeemed or purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).Notwithstanding the
Appears in 1 contract
Samples: Intercompany Note Guarantee Agreement (Ucar International Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market including as to the value to be of all non-cash consideration), as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; (2) (A) Disposition and at least 7580% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, . In the “event and to the extent that the aggregate Net Available Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company or any Restricted Subsidiary from one or more Asset Dispositions occurring on or after the Issue Date and its not applied pursuant to clause (i) or (ii) below exceeds $5 million, then the Company or such Restricted Subsidiaries since September 30, 2017 does not exceed in Subsidiary shall (i) within 360 days after - the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to date such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, so received exceeds $5 million and to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Senior Indebtedness), (A) apply an amount equal - to such excess Net Available Cash to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (such Restricted Subsidiary, in each case owing to a Person other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company or an any Affiliate of the Company, or (B) invest - (or enter into a binding commitment to invest; provided, however, that such -------- ------- commitment shall be subject only to customary conditions (other than financing) and such investment shall be consummated within 540 180 days from after the later of the date end of such Asset Disposition or the receipt of 360-day period) an amount equal to such Net Available CashCash not applied pursuant to clause (A), in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary) and (ii) apply such excess Net -- Available Cash (to the extent not applied pursuant to clause (i)) as provided such in paragraphs (b) through (f) of this Section 4.06; provided, however, that in -------- ------- connection with any prepayment, repayment, redemption repayment or purchase permanently retiresof Senior Indebtedness pursuant to clause (A) above, the Company or reduces such Restricted Subsidiary shall retire such Senior Indebtedness and shall cause the related loan commitment (commitment, if any) for, such Indebtedness to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed repaid or purchased; (B) second, to the extent of the balance . The amount of such excess Net Available Cash after application in accordance with required to be applied pursuant to clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil ii) above and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. not theretofore so applied shall constitute "Excess Proceeds." Pending application of Net --------------- Available Cash pursuant to this Section 4.07(a4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)Investments.
Appears in 1 contract
Samples: Iron Age Corp
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company and QS Wholesale shall not, and the Company shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless: (1) the Company Company, QS Wholesale or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined in advance on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or an officer the Company (including as to the value of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; (2) (A) except in the case of Permitted Asset Swaps, at least 75% of the consideration from such Asset Disposition received by the Company Company, QS Wholesale or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or cash equivalentsCash Equivalents; (3) if such Asset Disposition involves the disposition of Notes Priority Collateral, Additional Assets or an amount equal to the Net Available Cash thereof in excess of $10,000,000 attributable to Notes Priority Collateral (in the good faith determination of the Company as described in paragraph (g) of this Section 3.7) shall be deposited with the Collateral Agent for deposit into the Notes Loan Priority Account pending application in accordance with the provisions described below, and, if any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration property other than cash or Cash Consideration received by Equivalents is included in such Net Available Cash attributable to Notes Priority Collateral (in the good faith determination of the Company and its Restricted Subsidiaries since September 30as described in paragraph (g) of this Section 3.7), 2017 does not exceed in substantially all of such assets shall be made subject to the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition)Note Liens; and (34) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (Company, QS Wholesale or such Restricted Subsidiary, as the case may be, at the option of the Company, QS Wholesale or such Restricted Subsidiary, as the case may be: (a) (A) first, to the extent such Net Available Cash constitutes proceeds from an Asset Disposition of (x) ABL Priority Collateral or assets that are not Collateral, to prepay, repay or purchase Indebtedness under the Company elects (or is ABL Credit Facility as required by the terms thereof or (y) assets of any Indebtedness)a Restricted Subsidiary that is not a Subsidiary Guarantor, to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Restricted Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to as required by the Company or an Affiliate of the Company) within 540 days from the later of the date terms of such Asset Disposition or the receipt Indebtedness of such Net Available CashRestricted Subsidiary, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment in each case of clauses (if anyx) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; and (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (Ay), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (Ba), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company, QS Wholesale or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related commitment (if any) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase be permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Pending application ; (b) to repay or purchase Notes or Permitted Additional Pari Passu Obligations at a price equal to or higher than 100% of the principal amount thereof within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, that if an Issuer or any Restricted Subsidiary shall so repay Permitted Additional Pari Passu Obligations, the Issuers will reduce (or, as applicable, offer to purchase) obligations under the Notes on a pro rata basis by, at its option, (A) redeeming Notes pursuant to Section 5.1, (B) purchasing Notes through open market purchases, at a price as a percentage of the principal amount thereof equal to or higher than the price paid for such Permitted Additional Pari Passu Obligations, in a manner that complies with this Indenture and applicable securities law or (C) making an offer (in accordance with the procedures set forth below for an Asset Disposition 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, thereon; (c) to acquire Additional Assets or make capital expenditures within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided that, to the extent such Net Available Cash pursuant to this Section 4.07(ais received in respect of Notes Priority Collateral (other than Non-Core Asset Proceeds), such Net Available Cash shall be invested in Temporary Cash Investments or is applied to acquire assets substantially all of which constitute Notes Priority Collateral or such capital expenditures relate to Notes Priority Collateral; provided, further that, in case of the acquisition of Additional Assets, such Additional Assets are thereupon pledged to the extent required by the Security Documents (subject to the exclusions and exceptions therein) and otherwise in compliance with Section 3.19; or (d) to do any combination of the foregoing; provided that pending the final application of any such Net Available Cash (other than Trust Monies) in accordance with clause (a), (b), (c) or (d) above, the Company, QS Wholesale and the Restricted Subsidiaries may temporarily reduce revolving credit Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture; provided further that the Company and QS Wholesale will be deemed to have complied with the provision described in clause (which may include Priority Lien Debt)c) above if, and to the extent that, within 365 days after the Asset Disposition that generated the Net Available Cash, the Company, QS Wholesale or any Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement to acquire Additional Assets or make such capital expenditures, and that acquisition is thereafter completed or the capital expenditures thereafter made within 180 days after the end of such 365-day period.
Appears in 1 contract
Samples: Quiksilver (Quiksilver Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, to consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market including as to the value to be of all non-cash consideration), as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; (2) (A) Disposition and at least 75% (or 100% in the case of lease payments received by the Company or such Restricted Subsidiary) of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, . In the “event and to the extent that the Net Available Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its or any Restricted Subsidiaries since September 30Subsidiary from one or more Asset Dispositions occurring on or after the Issue Date exceeds $10 million, 2017 does not exceed in then the aggregate 10% of ACNTA at Company or such Restricted Subsidiary shall (i) within 360 days after the time of the applicable Asset Disposition (after giving effect to date such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, so received exceeds $10 million and to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Indebtedness), ) to (A) apply an amount equal to such excess Net Available Cash to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or any such Restricted Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed which is subordinated or junior in any respect (other than as a result of the Indebtedness being unsecured) to any other Indebtedness of the Company or an such Restricted Subsidiary), in each case owing to a Person other than the Company or any Affiliate of the CompanyCompany or (B) within 540 days from the later of the date of such Asset Disposition invest an equal amount, or the receipt amount not so applied pursuant to clause (A), in Additional Assets (including by means of such an Investment in Additional Assets by a Restricted Subsidiary with Net Available CashCash received by the Company or another Restricted Subsidiary) and (ii) apply such excess Net Available Cash (to the extent not applied pursuant to clause (i)) as provided in the following paragraphs of this Section; PROVIDED, provided such HOWEVER, that in connection with any prepayment, repayment, redemption repayment or purchase permanently retiresof Indebtedness pursuant to clause (A) above, the Company or reduces such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) for, such Indebtedness to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed repaid or purchased; (B) second, to the extent of the balance . The amount of such excess Net Available Cash after application in accordance with required to be applied pursuant to clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil ii) above and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchasednot theretofore so applied shall constitute "Excess Proceeds". Pending application of Net Available Cash pursuant to this Section 4.07(a)provision, such Net Available Cash shall be invested in Temporary Cash Investments Investments. If at any time the aggregate amount of Excess Proceeds not theretofore subject to an Excess Proceeds Offer (as defined below) totals at least $10 million, the Company shall, not later than 30 days after the end of the period during which the Company is required to apply such Excess Proceeds pursuant to clause (i) of the immediately preceding paragraph (or, if the Company so elects, at any time within such period), make an offer (an "Excess Proceeds Offer") to purchase from the Holders on a pro rata basis an aggregate principal amount of Senior Notes equal to the Excess Proceeds (rounded down to the nearest multiple of $1,000) on such date, at a purchase price equal to 100% of the principal amount of such Senior Notes, plus, in each case, accrued interest (if any) to the date of purchase (the "Excess Proceeds Payment"). Upon completion of an Excess Proceeds Offer, the amount of Excess Proceeds remaining after application pursuant to such Excess Proceeds Offer (including payment of the purchase price for Senior Notes duly tendered) may be used by the Company for any corporate purpose (to the extent not otherwise prohibited by the Indenture). For the purposes of this Section, the following are deemed to be cash: (x) the assumption of Indebtedness of the Company or applied to temporarily reduce revolving credit any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (which may include Priority Lien Debt)y) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
Appears in 1 contract
Samples: Wyman Gordon Co
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Company's Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); Equivalents and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) firstFIRST, to the extent the Company or any Restricted Subsidiary elects (or is required by the terms of any Secured Indebtedness), (x) to prepay, repay, redeem repay or purchase Senior Secured Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stocky) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company investment in or an Affiliate acquisition of the Company) Additional Assets within 540 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) secondSECOND, within 360 days from the receipt of such Net Available Cash, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company electsmake an offer to purchase Notes at 100% of their principal amount plus accrued and unpaid interest, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cashif any, thereon; and (C) thirdTHIRD, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), (w) to the investment in or acquisition of Additional Assets, (x) the making of Temporary Cash Investments or (y) any other purpose otherwise permitted under this Indenture, in each case within the later of 45 days after the application of Net Available Cash in accordance with clauses (A) or (B) or the date that is one year from the receipt of such Net Available Cash; PROVIDED, HOWEVER, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (B) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions, the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this covenant at any time exceeds $10.0 million. The Company shall not be required to make an offer for Notes pursuant to this covenant if the Net Available Cash available therefor (after application of the proceeds as provided in clause (A)) is less than $10.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an offer is required with respect to the Holders Net Available Cash from any subsequent Asset Disposition). For the purposes of this covenant, the following will be deemed to be cash: (and to holders x) the assumption by the transferee of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other or Senior Indebtedness of any Restricted Subsidiary and the Companyrelease of the Company or such Restricted Subsidiary from all liability on such Senior Indebtedness in connection with such Asset Disposition (in which case the Company shall, without further action, be deemed to have applied such assumed Indebtedness in accordance with clause (A) pursuant to of the preceding paragraph) and subject to (y) securities received by the conditions contained in this Indenture, which purchase permanently reduces Company or any Restricted Subsidiary of the outstanding amount of such Securities Company from the transferee that are promptly (and in any event within 90 days) converted by the Company or such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)Restricted Subsidiary into cash.
Appears in 1 contract
Samples: Indenture (Bluegreen Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), Fair Market Value of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); equivalents and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any Bank Indebtedness), ) to (x) reinvest in Telecommunications Assets (including by means of an Investment in Telecommunications Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary) or (y) prepay, repay, redeem or purchase Senior Bank Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed Incurred pursuant to the Company or an Affiliate of the Company) Section 4.03(b)(i), in each case within 540 180 days from after the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to make an Offer (as defined below) to purchase Securities pursuant to and subject to the extent the Company elects, to acquire Additional Assets or to make capital expenditures conditions set forth in the Oil and Gas Business Section 4.06(c) within 540 365 days from after the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that if the Company elects (or is required by the terms of any other Senior Indebtedness), such Offer may be made ratably to purchase the Securities and other Senior Indebtedness of the Company, and (C) third, to fund (to the extent consistent with any other applicable provision in this Indenture) any corporate purpose. Notwithstanding the foregoing provisions of this Section 4.06, the balance of such Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash after application in accordance with clauses (A) and (B), to make an offer this Section 4.06 except to the Holders (and to holders of other Senior Indebtedness of extent that the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of aggregate Net Available Cash pursuant to from all Asset Dispositions that is not applied in accordance with this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)4.06 exceeds $5.0 million.
Appears in 1 contract
Samples: Splitrock Services Inc
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1i) the Company (or such Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined in advance in good faith evidenced by an Officer or an officer a resolution of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provisionDirectors as set forth in an Officers' Certificate delivered to the Trustee), of the equity and assets subject to such Asset Disposition; (2ii) (A) at least 75% of the consideration received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); , the noncash consideration received in connection with all Asset Dispositions for the period beginning on the Issue Date through and including the date of such proposed Asset Disposition, less cash received in connection with the sale, disposition, transfer or other conversion of noncash consideration received in connection with Asset Dispositions during such period, does not exceed 5% of the Company's Consolidated Tangible Assets after giving effect to such Asset Disposition and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than any Disqualified Stock) of a Wholly-Owned Restricted Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company, unless permitted pursuant to the last sentence of Section 4.07(b)) within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders holders of the Securities (and to holders of other Senior Subordinated Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the CompanySubordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; provided, which however, that in connection with any 49 49 prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, the Company or such Restricted Subsidiary shall permanently reduces retire such Indebtedness and shall cause the outstanding amount of such Securities related loan commitment (and such other Senior Indebtednessif any) to be permanently reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this paragraph except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this paragraph exceeds $10 million. Pending application of Net Available Cash pursuant to this Section 4.07(a)covenant, such Net Available Cash shall be invested in Temporary Cash Investments Permitted Investments. For the purposes of this Section 4.06, the following are deemed to be cash or applied to temporarily reduce revolving credit cash equivalents: (x) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition (which may include Priority Lien Debt)assumption shall also constitute a repayment of Indebtedness pursuant to the preceding paragraph) and (y) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
Appears in 1 contract
Samples: Indenture (Ixc Communications Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; (2) (A) Disposition and at least 75% of the 42 consideration thereof received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or cash equivalentsCash Equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3ii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, (x) to the extent the Company elects (or is required by the terms of any Senior Indebtedness), to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company) within 360 days of such Asset Disposition, (y) at the Company's election to the investment by the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Wholly Owned Subsidiary or such Restricted Subsidiary in long-term assets to replace the assets that were the subject of such Asset Disposition or a long- term asset that (as determined in good faith by the Board of Directors) is not a Subsidiary Guarantor (other than Indebtedness owed directly related to the Company or an Affiliate business of the Company) Company and the Restricted Subsidiaries existing on March 29, 2001, in each case within 540 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retiresDisposition, or reduces (z) a combination of the related loan commitment (if any) for, foregoing purposes within such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased360-day period; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to make a pro rata offer to purchase Notes at par (and, to the extent required by the Company electsinstrument governing such Indebtedness, to acquire Additional Assets or to make capital expenditures in any other Senior Subordinated Indebtedness designated by the Oil Company, at a price no greater than par) plus accrued and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; unpaid interest, and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B),for general corporate purposes otherwise not prohibited under the Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (B)) above, to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by or such Subsidiary shall retire such Indebtedness and cause the Companyrelated loan commitment (if any) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase be permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section, the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section except to the extent that the aggregate Net Available Cash from all Asset Dispositions (including any Asset Dispositions made since March 29, 2001) which are not applied in accordance with this Section exceeds $10 million. Pending application of Net Available Cash pursuant to this Section 4.07(a)Section, such Net Available Cash shall be invested in Temporary Cash Investments or applied used to temporarily reduce revolving credit Senior Indebtedness or invested in Cash Equivalents. For the purposes of this covenant, the following is deemed to be cash or Cash Equivalents: the express assumption of Indebtedness (other than any Indebtedness that is by its terms subordinated to the Notes) of the Company or any Restricted Subsidiary, but only to the extent that such assumption is effected on a basis under which may include Priority Lien Debt).there is no further recourse to the Company or any of the Restricted Subsidiaries with respect to such liabilities
Appears in 1 contract
Samples: Indenture (Terex Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 7580% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any IndebtednessSenior Indebtedness or Indebtedness of a Wholly owned Subsidiary), to prepay, repay, redeem repay or purchase Senior such Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Wholly Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from 6 months after the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company or such Restricted Subsidiary elects, to acquire reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or to make capital expenditures in the Oil and Gas Business another Restricted Subsidiary) within 540 days 6 months from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer repay the Loan, provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to the Holders clause (and to holders of other Senior Indebtedness of A) or (C) above, the Company designated by or such Restricted Subsidiary shall retire such Indebtedness and shall cause the Companyrelated loan commitment (if any) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase be permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Pending application Notwithstanding the foregoing provisions of this Section, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash pursuant to in accordance with this Section 4.07(a), such except to the extent that the aggregate Net Available Cash shall from all Asset Dispositions which are not applied in accordance with this Section exceed $500,000. For the purposes of this Section, the following are deemed to be invested cash: (x) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in Temporary Cash Investments connection with such Asset Disposition and (y) securities received by the Company or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 75% (or 50% in the case of an Asset Disposition relating to the Specified Real Estate) of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) firstFIRST, within one year from the later of such Asset Disposition or the receipt of such Net Cash Proceeds, either (1) to the extent the Company elects (or is required by the terms of any IndebtednessSenior Indebtedness or Indebtedness (other than Preferred Stock) of a Wholly Owned Subsidiary), to prepay, repay, redeem redeem, defease or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or such Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from or (2) to the later extent the Company or such Restricted Subsidiary elects, to reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary), or (3) a combination of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchasedforegoing; (B) secondSECOND, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to make an Offer to purchase Securities and Existing Securities pursuant to and subject to the extent conditions of Section 4.06(b), PROVIDED that if the Company electselects (or is required by the terms of any Senior Subordinated Indebtedness), such Offer may be made to acquire Additional Assets or to make capital expenditures in ratably purchase the Oil Securities and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; other Senior Subordinated Indebtedness and (C) thirdTHIRD, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior prepay, repay, redeem, defease or purchase Indebtedness of the Company designated by (other than Indebtedness owed to an Affiliate of the Company) to purchase Securities (Company and such other Senior Indebtedness than Disqualified Stock of the Company) or Indebtedness of any Restricted Subsidiary (other than Indebtedness owed to the Company or an Affiliate of the Company), in each case described in this clause (C) within one year from the receipt of such Net Available Cash or, if the Company has made an Offer pursuant to clause (B), six months from the date such Offer is consummated; PROVIDED, HOWEVER that in connection with any prepayment, repayment, redemption, defeasance or purchase of Indebtedness pursuant to clause (A), (B) or (C) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and subject shall cause the related loan commitment (if any) to the conditions contained in this Indenture, which purchase be permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid, redeemed, defeased or purchased. Pending application Notwithstanding the foregoing provisions of this covenant, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash pursuant to in accordance with this Section 4.07(a), such except to the extent that the aggregate Net Available Cash shall from all Asset Dispositions that is not applied in accordance with this Section 4.06 exceeds $10,000,000. For the purposes of this Section 4.06, the following are deemed to be invested cash: (x) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in Temporary Cash Investments connection with such Asset Disposition, (y) securities received by the Company or applied any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash and (z) in the case of an Asset Disposition relating to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)the Specified Real Estate, REIT Securities.
Appears in 1 contract
Samples: Indenture (Argo Tech Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company Issuers shall not, and shall not permit any Restricted Re stricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1i) the Company Issuers or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market including the value to be of all non-cash consideration), as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Company's Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; (2) (Aii) at least 75% of the consideration thereof received by the Company Issuers or such Restricted Subsidiary is Subsid iary in the form connection with such Asset Disposition consists of cash cash, Temporary Cash Investments or other cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company Issuers (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects either (or is required by the terms of any Indebtedness), to x) prepay, repay, redeem or purchase (and permanently reduce the commitments under) Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than any Disqualified Stock) of a Wholly-Owned Restricted Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company Issuers or an Affiliate of the Issuers or Indebtedness, other than Senior Indebtedness, of the Company) or (y) to the extent an Issuer elects, to acquire Additional Assets, in each case within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption ; or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) secondto make an offer pursuant to paragraph (b) below to the Holders to purchase Notes pursuant to and subject to the conditions contained in this Indenture and to repurchase or redeem the Issuers' other Indebtedness ranking on a parity with the Notes and with similar provisions requiring the Issuers to repurchase or redeem such Indebtedness with the proceeds from such Asset Disposition, pro rata in proportion to the respective principal amounts (or accreted values in the case of Indebtedness issued with an original issue discount) of the Notes and such other Indebtedness then outstanding and (C) to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets ) or to make capital expenditures in the Oil and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer any other application or use not prohibited by this Indenture. Notwithstanding the foregoing provisions of this paragraph (a), the Issuers and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this paragraph except to the Holders extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this paragraph exceeds $5 million (at which time, the entire unutilized Net Available Cash, and not just the amount in excess of $5 million, shall be applied pursuant to holders this paragraph). For the purposes of other Senior this Section 4.15, the following are deemed to be cash or cash equivalents: (x) the assumption of Indebtedness of the Company designated Issuers or any Restricted Subsidiary and the release of the Issuers or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (y) securities received by the Company) to purchase Securities (and Issuers or any Restricted Subsidiary from the transferee that are converted by the Issuers or such other Senior Indebtedness Restricted Subsidiary into cash within 90 days of the Company) pursuant to and subject to the conditions contained in closing this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)transaction.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors or the board of compliance with this provisiondirectors of the relevant Subsidiary (including as to the value of all non-cash consideration), of the equity shares and assets subject to such Asset Disposition; (2) (A) Disposition and at least 75lease 80% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalentsequivalents or consists of assets in which the Company or such Subsidiary, Additional Assets or any combination thereof (collectivelyas the case may be, would have been able to invest pursuant to the “Cash Consideration”) or election set forth in clause (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30below, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3ii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any IndebtednessPari Passu Debt), to prepay, repay, redeem repay or purchase Senior Indebtedness Pari Passu Debt or Debt of a Wholly Owned Subsidiary or such Subsidiary elects (or is required by the Company terms of any Pari Passu Debt) to prepay, repay or any Subsidiary Guarantor purchase Debt or Indebtedness Pari Passu Debt (in each case other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness Debt owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 60 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; (B) second, to the extent of the balance of such Net Available Cash after any application in accordance with clause (A), at the election of the Company or such Subsidiary, as the case may be, to acquire assets to replace its assets that were the subject of such Asset Disposition or to acquire assets (or to make improvements to existing assets) that (as determined by the Board of Directors or the board of directors of such Subsidiary, as the case may be) will be used in the business of the Company and its Subsidiaries existing on the date of original issuance of the Securities or in businesses reasonably related thereto, in each case by the later of (x) the date that is 180 days from the date of such Asset Disposition or (y) the date of the receipt of such Net Available Cash (the later of (x) and (y) being hereinafter called the "New Asset Acquisition Date"); (C) third, to the extent of any balance of such Net Available Cash after application and in accordance with clauses (A) and (B), to make an offer (the "Net Available Cash Offer") pursuant to and subject to the conditions contained in this Indenture, to the holders of the Securities (and to holders of other Pari Passu Debt designated by the Company) to purchase Securities (and such other Pari Passu Debt) at a purchase price of 100% of the principal amount thereof (without premium) plus accrued and unpaid interest (or in respect of such other Pari Passu Debt such lesser price, if any, as may be provided for by the terms of such other Pari Passu Debt) (the aggregate amount of such purchase price being hereinafter called the "Net Available Cash Payment") and (D) fourth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (BC), to make an offer any application not prohibited by this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Debt pursuant to the Holders clause (and to holders of other Senior Indebtedness of A) or (C) above, the Company designated by or such Subsidiary shall retire such Debt and shall cause the Companyrelated loan commitment (if any) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase be permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph, the Company and its Subsidiaries shall not be required to apply any Net Available Cash (other than Net Available Cash from an Asset Disposition consisting of a sale and leaseback transaction that the Company has elected to treat as an Asset Disposition pursuant to clause (ii) of Section 4.09) in accordance with this paragraph except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this paragraph exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.07(a)covenant, such Net Available Cash shall be invested in Temporary Permitted Investments. Within 30 days after the New Asset Acquisition Date, the Company shall commence a Net Available Cash Investments or applied Offer by mailing a notice to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).the Trustee and each Holder stating:
Appears in 1 contract
Samples: Borden Chemicals & Plastics Limited Partnership /De/
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Company's Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 7580% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); Equivalents and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company or any Restricted Subsidiary elects (or is required by the terms of any IndebtednessSecured indebtedness), (x) to prepay, repay, redeem repay or purchase Senior Secured Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stocky) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company investment in or an Affiliate acquisition of the Company) Additional Assets within 540 270 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, within 270 days from the receipt of such Net Available Cash, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company electsmake an offer to purchase Notes at 101% of their principal amount plus accrued and unpaid interest, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business if any, thereon; (C) third, within 540 90 days from after the later of the application of Net Available Cash in accordance with clauses (A) and (B) and the date of such Asset Disposition or that is one year from the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer prepay, repay or repurchase Indebtedness (other than Preferred Stock) of the Company or of a Wholly-Owned Subsidiary (in each case other than Indebtedness owed to the Holders Company); and (D) fourth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C), to holders (w) the investment in or acquisition of Additional Assets, (x) the making of Temporary Cash Investments, (y) the prepayment, repayment or purchase of Indebtedness of the Company (other than Indebtedness owing to any Subsidiary of the Company) or Indebtedness of any Subsidiary (other than Indebtedness owed to the Company or any of its Subsidiaries) or (z) any other purpose otherwise permitted under the Indenture, in each case within the later of 45 days after the application of Net Available Cash in accordance with clauses (A), (B) and (C) or the date that is one year from the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A), (B), (C) or (D) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions, the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net For the purposes of this covenant, the following will be deemed to be cash: (x) the assumption by the transferee of Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other or Senior Indebtedness of any Restricted Subsidiary and the Companyrelease of the Company or such Restricted Subsidiary from all liability on such Senior Indebtedness in connection with such Asset Disposition (in which case the Company shall, without further action, be deemed to have applied such assumed Indebtedness in accordance with clause (A) pursuant to of the preceding paragraph) and subject to (y) securities received by the conditions contained in this Indenture, which purchase permanently reduces Company or any Restricted Subsidiary of the outstanding amount of such Securities Company from the transferee that are promptly (and in any event within 60 days) converted by the Company or such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)Restricted Subsidiary into cash.
Appears in 1 contract
Samples: American Architectural Products Corp
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at least equal to the fair market value (such fair market value to be determined in advance on the date of contractually agreeing to such Asset Disposition in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or the Board of Directors if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity and assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Secured Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than any Disqualified Stock) of a Wholly-Wholly Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas a Permitted Business within 540 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and and/or (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders holders of the Securities and the 2017 Securities (if required by the 2017 Indenture) (and to holders of other Senior Pari Passu Indebtedness of the Company designated by the Company) to purchase Securities and the 2017 Securities (and such other Senior Pari Passu Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indentureherein, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchasedas set forth below. Pending application of Net Available Cash pursuant to this Section 4.07(a)covenant, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness Indebtedness. For the purposes of Section 4.07(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 (which may include Priority Lien Debt)other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to (A) a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability or (B) an assignment agreement that includes, in lieu of such a release, the agreement of the transferee or its parent company to indemnify and hold harmless the Company or such Restricted Subsidiary from and against any loss, liability or cost in respect of such assumed liability, shall be deemed to be cash or cash equivalents.
Appears in 1 contract
Samples: Indenture (CONSOL Energy Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless unless: (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market including as to the value to be of all non-cash consideration), as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; (2) (A) at least 7580% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than any Disqualified Stock) of a Wholly-CB Rxxxxxx xx any Wholly Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days fifteen months from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer Offer to the Holders holders of the Securities (and to holders of other Senior unsubordinated Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior unsubordinated Indebtedness of the Company) pursuant to and subject to the conditions contained of Section 4.06(b); provided, however, that in this Indentureconnection with any prepayment, which repayment or purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash Indebtedness pursuant to this Section 4.07(a)clause (A) or (C) above, such Net Available Cash shall be invested in Temporary Cash Investments the Company or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).such
Appears in 1 contract
Samples: Malek Frederic V
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer the Company's senior management or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); equivalents and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company or any Restricted Subsidiary elects (or is required by the terms of any Senior Indebtedness), to prepay, repay, redeem repay or purchase (x) Senior Indebtedness of the Company or any Subsidiary Guarantor or (y) Indebtedness (other than Disqualified Preferred Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 180 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, within one year from the receipt of such Net Available Cash, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), at the Company's election either (x) to the extent the Company elects, to acquire investment in or acquisition of Additional Assets or (y) to make capital expenditures prepay, repay or purchase (1) Senior Indebtedness or (2) Indebtedness (other than Preferred Stock) of a Wholly-Owned Subsidiary (in each case other than Indebtedness owed to the Oil Company); and Gas Business (C) third, within 540 45 days from after the later of the application of Net Available Cash in accordance with clauses (A) and (B) and the date of such Asset Disposition or that is one year from the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to purchase Securities and other Senior Subordinated Indebtedness, to the Holders extent required pursuant to the terms thereof, pro rata at 100% of the tendered principal amount thereof (or 100% of the accreted value of such other Senior Subordinated Indebtedness so tendered, if such Senior Subordinated Indebtedness was issued at a discount) plus accrued and unpaid interest, if any, thereon to holders the date of other purchase. The balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) may be used by the Company in any manner not otherwise prohibited under this Indenture. Notwithstanding anything herein to the contrary, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A), (B) or (C) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) 48 42 to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions, the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this Section 4.6 at any time exceed $15 million. The Company shall not be required to make an offer for Securities pursuant to this Section 4.6 if the Net Available Cash available therefor (after application of the proceeds as provided in clauses (A) and (B)) is less than $25 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). For the purposes of this Section 4.6, the following will be deemed to be cash: (x) the assumption by the transferee of Senior Indebtedness of the Company designated or Indebtedness of any Restricted Subsidiary of the Company and the release of the Company or such Restricted Subsidiary from all liability on such Senior Indebtedness or Indebtedness in connection with such Asset Disposition (in which case the Company shall, without further action, be deemed to have applied such assumed Indebtedness in accordance with clause (A) of the preceding paragraph) and (y) securities received by the Company) to purchase Securities (and such other Senior Indebtedness Company or any Restricted Subsidiary of the CompanyCompany from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash. Notwithstanding the foregoing, the Company and its Restricted Subsidiaries shall be permitted to consummate an Asset Swap if (i) pursuant immediately after giving effect to such Asset Swap, no Default or Event of Default shall have occurred or be continuing, (ii) in the event such Asset Swap involves an aggregate amount in excess of $10 million, the terms of such Asset Swap have been approved by a majority of the members of the Board of Directors, and subject (iii) in the event such Asset Swap involves an aggregate amount in excess of $50 million, the Company has received a written opinion from an independent investment banking firm of nationally recognized standing that such Asset Swap is fair to the conditions contained in this IndentureCompany or such Restricted Subsidiary, which purchase permanently reduces as the outstanding amount case may be, from a financial point of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)view.
Appears in 1 contract
Samples: Indenture (Viasystems Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from Senior Indebtedness at the time of such Asset Disposition) at least equal to the fair market value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares, property and other assets subject to such Asset Disposition; , (2ii) (A) at least 7585% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash cash, Temporary Cash Investments or cash equivalentsother assets of a type ordinarily used in a Related Business that are to be used by the Company or a Restricted Subsidiary in the conduct of its business, Additional Assets or any combination thereof except that (collectively, A) up to 80% of the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30in connection with any disposition of the Company's equity interests in Consorcio Ecuatoriano de Telecommunicaciones, 2017 does not exceed S.A. may be in the aggregate 10% form of ACNTA at promissory notes that must be paid in cash within three years following the time consummation of such disposition and (B) this clause (ii) shall not apply to any disposition of the applicable Company's equity interests in Iusatel Chile, S.A. de C.V. and (iii) the proceeds of such Asset Disposition (after giving effect to such Asset Disposition); and (3) an are applied as set forth in the remainder of this paragraph. An amount equal to 100% of the Net Available Cash from such Asset Disposition is may be applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 365 days from after the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided to the extent the Company elects (or is required by the terms of any Senior Indebtedness), (x) to prepay, repay or purchase Senior Indebtedness (other than Senior Indebtedness owed to the Company or an Affiliate of the Company); provided, however, that in connection with any such prepayment, repaymentrepayment or purchase, redemption the Company or purchase such Restricted Subsidiary shall permanently retires, or reduces retire such Senior Indebtedness and shall cause the related loan commitment (if any) for, such Indebtedness to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed repaid or purchased; purchased or (By) second, to the extent reinvest in Additional Assets (including by means of the balance of such an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash after application received by the Company or another Restricted Subsidiary). Any Net Available Cash from an Asset Disposition that is not used in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business preceding sentence within 540 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses relating thereto shall constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds U.S.$5.0 million (A) and (Btaking into account income earned on such Excess Proceeds), to the Company shall make an offer to the Holders Offer (and to holders of other Senior Indebtedness of the Company designated by the Companyas defined below) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained set forth in paragraph (b) of this Section. To the extent that any portion of the Excess Proceeds remains after compliance with the preceding sentence and provided that all Holders have been given the opportunity to tender the Securities for repurchase in accordance with this Indenture, which purchase permanently reduces the outstanding Company or such Restricted Subsidiary may use such remaining amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchasedfor any purpose not prohibited by this Indenture. Pending application of Net Available Cash pursuant to this Section 4.07(a)provision, such Net Available Cash shall be invested in Temporary Cash Investments Investments. For the purposes of this Section 4.07(a), (x) the assumption of Senior Indebtedness of the Company (other than Disqualified Stock of the Company) or applied any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Senior Indebtedness in connection with such Asset Disposition and (y) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash shall be deemed to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)be "cash".
Appears in 1 contract
Samples: Mexican Cellular Investments Inc
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company Holdings shall not, and shall not permit the Company or any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) Holdings, the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market Fair Market Value (including as to the value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), all non-cash consideration) of the equity shares and assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration thereof received by Holdings, the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Temporary Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition)Investments; and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by Holdings (or the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms Holdings elects, within 365 days of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment(i) to reduce the outstanding principal amount of Permitted Indebtedness Incurred pursuant to Section 4.03(b)(1); (ii) to reduce the outstanding principal amount of any other Senior Indebtedness of Holdings, repaymentthe Company or any Subsidiary Guarantor; provided, redemption or purchase permanently retireshowever, or reduces that the related loan commitment (if any) for, such Indebtedness in an amount equal to Company shall equally and ratably reduce the principal amount so prepaidof Securities outstanding, repaidthrough open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or through redemption, redeemed or purchasedshall offer (in accordance with the procedures set forth below in Section 4.06(b)) to all Holders to purchase their Securities at 100% of the principal amount thereof, plus accrued but unpaid interest, if any, in an aggregate principal amount which, if the offer were accepted, would result in such reduction; or (iii) to reduce Indebtedness of a Restricted Subsidiary that is not a Guarantor; in each case other than Indebtedness owed to Holdings or an Affiliate of Holdings; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company Holdings elects, to acquire Additional Assets or to make any other capital expenditures in the Oil and Gas respect of a Related Business within 540 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders of the Securities (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture; provided, which however, that in connection with any prepayment, repayment or purchase permanently reduces of Indebtedness pursuant to clause (A) or (C) above, Holdings, the outstanding amount of Company or such Securities Restricted Subsidiary shall cause the related loan commitment (and such other Senior Indebtednessif any) to be reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. The requirement of Section 4.06(a)(3)(B) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by Holdings, the Company or any of its Restricted Subsidiaries within the time period specified in Section 4.06(a)(3)(A) and such Net Available Cash is subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Notwithstanding the foregoing provisions of this Section 4.06, Holdings, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 4.06 except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06 exceeds $25,000,000. Pending application of Net Available Cash pursuant to this Section 4.07(a)4.06, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness. For the purposes of Section 4.06(a)(2), the following are deemed to be cash or Temporary Cash Investments: (i) the assumption or discharge of Indebtedness of Holdings (which may include Priority Lien Debtother than obligations in respect of Disqualified Stock of Holdings), the Company or any Restricted Subsidiary (other than obligations in respect of Disqualified Stock or Preferred Stock of the Company or a Restricted Subsidiary that is a Subsidiary Guarantor) and the release of Holdings, the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition; (ii) any securities received by Holdings, the Company or any Restricted Subsidiary from the transferee that are converted by Holdings, the Company or such Restricted Subsidiary into cash within ninety (90) days after such Asset Disposition, to the extent of the cash received in that conversion; and (iii) any Designated Non-cash Consideration received by Holdings, the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (3) that is at that time outstanding, not to exceed the greater of (1) $95,000,000 and (2) 4% of Consolidated Net Tangible Assets of Holdings, the Company and the Restricted Subsidiaries at the time of the receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
Appears in 1 contract
Samples: Indenture (Murphy USA Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market including as to the value to be of all non-cash consideration), as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) firstFIRST, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than any Disqualified Stock) of a Wholly-Wholly Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) secondSECOND, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) thirdTHIRD, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer Offer to the Holders of the Securities (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained of Section 4.06(b); PROVIDED, HOWEVER, that in this Indentureconnection with any prepayment, which repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, the Company or such Restricted Subsidiary shall permanently reduces retire such Indebtedness and shall cause the outstanding amount of such Securities related loan commitment (and such other Senior Indebtednessif any) to be permanently reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 4.06, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 4.06(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions that is not applied in accordance with this Section 4.06(a) exceeds $5.0 million. Pending application of Net Available Cash pursuant to this Section 4.07(a4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (i) the assumption of Indebtedness of the Company (which may include Priority Lien Debt)other than Obligations in respect of Disqualified Stock of the Company) or any Restricted Subsidiary (other than Obligations in respect of Disqualified Stock or Preferred Stock of a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (ii) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash, to the extent of cash received in that conversion.
Appears in 1 contract
Samples: PrimeWood, Inc.
Limitation on Sales of Assets and Subsidiary Stock. (a) -------------------------------------------------- The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary or the direct or indirect equity owners of the Company receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision)Governing Board, of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company or the direct or indirect equity owners of the Company (or such Restricted Subsidiary, as the case may be) (A1) first, to the extent the Company elects (or is required by the terms of any ----- Indebtedness), to prepay, repay, redeem purchase, repurchase, redeem, retire, defease or purchase otherwise acquire for value Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified obligations in respect of Preferred Stock) of a Wholly-Owned Restricted Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the CompanyCompany and other than obligations in respect of Disqualified Stock) within 540 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; (2) second, to the extent ------ of the balance of Net Available Cash after application in accordance with clause (1), to the extent the Company or such Restricted Subsidiary elects, to reinvest in Additional Assets to be owned by the Company or a Restricted Subsidiary (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash) within 365 days from the later of such Asset Disposition or the receipt of such Net Available Cash, or, if such reinvestment in Additional Assets is a project authorized by the Governing Board that will take longer than 365 days to complete, the period of time necessary to complete such project; (3) third, to the extent of the balance of such Net Available Cash ----- after application in accordance with clauses (1) and (C2), to make an Offer (as defined in Section 4.06(b) thirdbelow) to purchase the Securities pursuant to and subject to the conditions of Section 4.06(b); provided, however, that if the -------- ------- Company elects (or is required by the terms of any other Senior Subordinated Indebtedness), such Offer may be made ratably to purchase the Securities and other Senior Subordinated Indebtedness of the Company, and (4) fourth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A1), (2) and (B3), for any general corporate purpose permitted by the terms of this Indenture; provided, however, that in connection with any -------- ------- prepayment, repayment, purchase, repurchase, redemption, retirement, defeasance or other acquisition for value of Indebtedness pursuant to make an offer to the Holders clause (and to holders of other Senior Indebtedness of 1), (2) or (4) above, the Company designated by or such Restricted Subsidiary shall retire such Indebtedness and shall cause the Companyrelated loan commitment (if any) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase be permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid, purchased. Pending , repurchased, redeemed, retired, defeased or otherwise acquired for value; provided, further, however, that any application of proceeds -------- ------- ------- made pursuant to clause (1), (2), (3) or (4) above by any direct or indirect owners of the Company shall be excluded from the calculation of the amount of Restricted Payments as described in clause 4.04(a)(iv)(3)(B) above. Notwithstanding the foregoing provisions of this Section 4.06, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash pursuant to in accordance with this Section 4.07(a), such 4.06(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions that is not applied in accordance with this Section 4.06(a) exceeds $10 million. For the purposes of this Section 4.06, the following are deemed to be cash: (A) the assumption of Indebtedness of the Company (other than in respect of Disqualified Stock of the Company) or any Restricted Subsidiary (other than obligations in respect of Disqualified Stock and Preferred Stock of a Restricted Subsidiary that is a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (B) securities received by the Company or any Restricted Subsidiary from the transferee that are within 60 days converted by the Company or such Restricted Subsidiary into cash. Notwithstanding the immediately preceding paragraphs of this Section 4.06, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Disposition without complying with such paragraphs to the extent that (1) at least 75% of the consideration for such Asset Disposition constitutes Additional Assets; and (2) such Asset Disposition is for at least fair value, as determined in good faith by the Governing Board; provided that -------- ---- the Net Available Cash from any consideration not constituting Additional Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Disposition permitted to be consummated under this paragraph shall be invested in Temporary Cash Investments subject to the provisions of the two preceding paragraphs; provided, that at the -------- ---- time of entering into such transaction or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)immediately after giving effect thereto, no Default or Event of Default shall have occurred or be continuing or would occur as a consequence thereof.
Appears in 1 contract
Samples: Armkel LLC
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; Disposition and (2) (Aii) at least 7585% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets Cash Equivalents. With respect to any Asset Disposition occurring on or after the Issue Date from which the Company or any combination thereof (collectivelyRestricted Subsidiary receives Net Available Cash, the “Cash Consideration”) Company or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its such Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) Subsidiary shall apply an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) firstat its election, to the extent the Company elects either (or is required by the terms of any Indebtedness), to i) prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified any Preferred Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment Company (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (Aother than Bank Indebtedness)), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (Cii) third, to invest in Additional Assets within 365 days from the extent later of the balance date of such Asset Disposition or the receipt of such Net Available Cash after application in accordance Cash; or (iii) make an offer pursuant to Section 3.7(b) to purchase the notes and other Senior Subordinated Indebtedness outstanding with clauses (A) and (B), similar provisions requiring the Company to make an offer to purchase such Indebtedness with the Holders proceeds from any Asset Disposition (the "Pari Passu Notes") at 100% of the principal amount thereof (or 100% of the accreted value of such Pari Passu Notes so tendered if such Pari Passu Notes were issued at a discount) plus accrued and unpaid interest, if any, to holders the date of purchase; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (i) above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any), unless such commitment is for the provision of a revolving credit facility, to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions, the Company and its Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this covenant exceed $1.0 million. Any Net Available Cash from an Asset Disposition that is not invested or applied as provided and within the time period set forth in clauses (i) and (ii) of the first sentence of this paragraph will be deemed to constitute "Excess Proceeds." For the purposes of this Section 3.7 and for no other purpose, the following will be deemed to be cash: (x) the assumption by the transferee of Senior Indebtedness of the Company designated or Indebtedness of any Restricted Subsidiary of the Company and the release of the Company or such Restricted Subsidiary from all liability on such Senior Indebtedness or Indebtedness in connection with such Asset Disposition (in which case the Company will, without further action, be deemed to have applied such assumed Indebtedness in accordance with clause (i) of the preceding paragraph); (y) securities received by the Company) to purchase Securities (and such other Senior Indebtedness Company or any Restricted Subsidiary of the Company) pursuant to Company from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash; and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater thanz) the principal amount purchased. Pending application fair market value, as determined by the Board of Net Available Cash Directors of the Company in good faith, of any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in any Asset Disposition, taken together with the fair market value, as determined by the Board of Directors of the Company in good faith, of all other Designated Noncash Consideration received pursuant to this Section 4.07(aclause (z) that is at that time outstanding, not to exceed $25.0 million at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value), in which case such Designated Noncash Consideration shall not constitute Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)Cash.
Appears in 1 contract
Samples: Advanstar Communications Inc
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition of any Notes Collateral, unless (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market Fair Market Value (including as to the value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), all non-cash consideration) of the equity shares and assets subject to such Asset Disposition; (2) (A) except in the case of any Permitted Asset Swap, at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or ; (3) to the extent that any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition), including any Permitted Asset Swap, constitute securities or other assets that constitute Notes Collateral, such securities or other assets, including the assets of any Person that becomes a Restricted Subsidiary of the Company as a result of such transaction, are concurrently with their acquisition added to the Notes Collateral securing the Securities, other than Excluded Assets; and (34) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied paid directly by the purchaser thereof to the Noteholder Collateral Agent to be held in trust in an Asset Sale Proceeds Account for application in accordance with this Section 4.06. Notwithstanding the foregoing provisions of this Section 4.06(a), the Company (or such and its Restricted Subsidiary, as the case may beSubsidiaries will not be required to cause any Net Available Cash to be held in an Asset Sale Proceeds Account in accordance with Section 4.06(a)(4) (A) first, except to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such aggregate Net Available Cash after application from all Asset Dispositions of Notes Collateral which are not held in an Asset Sale Proceeds Account, or have not been previously applied in accordance with clause (A), the provisions of the following paragraphs relating to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a)from Asset Dispositions of Notes Collateral, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)exceeds $10 million.
Appears in 1 contract
Samples: Indenture (Affinia Group Intermediate Holdings Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit either of the Issuers or any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company Company, the Issuers or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Company's Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 7580% of the consideration thereof received by the Company Company, the Issuers or such Restricted Subsidiary is in the form of cash or cash equivalentsCash Equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) applied: (A) first, to if at the extent time of the Asset Disposition the Company elects (or is required has not yet achieved Profitable Operations, pro rata to a mandatory offer by the terms of any Indebtedness), Issuers and the Company to prepay, repay, redeem or purchase Senior Indebtedness Securities at 101% of the Company or any Subsidiary Guarantor or Indebtedness Accreted Value thereof on the date of purchase, plus accrued and unpaid interest and Additional Amounts, if any, thereon, and the repayment of principal and accrued and unpaid interest, if any, under the Bank Credit Facility and (other than Disqualified StockB) if at the time of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Asset Disposition the Company or an Affiliate of has achieved Profitable Operations, at the Company's option either to (1) the investment in or acquisition of Additional Assets within 540 365 days from the later of the date of such Asset Disposition or and the receipt of such Net Available CashCash or (2) pro rata to a mandatory offer by the Issuers and the Company to purchase Securities at 101% of the Accreted Value thereof on the date of purchase plus accrued and unpaid interest and Additional Amounts, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any, thereon, and the repayment of principal and accrued and unpaid interest, if any, under the Bank Credit Facility; provided that the Issuers and the Company shall be required to purchase Indebtedness pursuant to clause (2) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (1). The Issuers shall not be required to make an offer to purchase Securities pursuant to this covenant if the Net Available Cash available therefor (after application of the proceeds as provided in clause (A)) is less than U.S.$10 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Notwithstanding the foregoing provisions, Net Available Cash shall not be required to be applied in accordance herewith to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this covenant at any time does not exceed U.S.$10 million. Notwithstanding the foregoing, to the extent the Company electsSenior Note Indenture limits the repurchase of Securities, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), Issuers shall not be required to make an offer hereunder for the repurchase of Securities. For the purposes of this Section 4.06, the following will be deemed to be cash: (x) the Holders (and to holders assumption by transferee of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company, the Issuers or any Restricted Subsidiary and the release of the Company, the Issuers or any Restricted Subsidiary from all liability on such Senior Indebtedness in connection with such Asset Disposition and (y) pursuant to and subject to securities received by the conditions contained in this IndentureCompany, which purchase permanently reduces the outstanding amount of such Securities Issuers or any Restricted Subsidiary from the transferee that are promptly (and in any event within 60 days) converted by the Company, the Issuers or such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)Restricted Subsidiary into cash.
Appears in 1 contract
Samples: NSM Steel Co LTD
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market including as to the value to be of all non-cash consideration), as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash, cash equivalents, Additional Assets or any combination thereof (collectively"Permitted Consideration"); provided, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by however, that the Company and its Restricted Subsidiaries since September 30shall be permitted to receive Property other than Permitted Consideration, 2017 does so long as the aggregate fair market value, as determined in the good faith of the Board of Directors, of all such Property other than Permitted Consideration received from Asset Dispositions and held by the Company and the Restricted Subsidiaries at any one time shall not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition)Adjusted Consolidated Net Tangible Assets; and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than any Disqualified Stock) of a Wholly-Owned Restricted Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer Offer to the Holders holders of the Debt Securities (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Debt Securities (and such other Senior Indebtedness of the CompanySenor Indebtedness) pursuant to and subject to the conditions contained of Section 4.15(b); provided, however, that in this Indentureconnection with any prepayment, which repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, the Company or such Restricted Subsidiary shall permanently reduces retire such Indebtedness and shall cause the outstanding amount of such Securities related loan commitment (and such other Senior Indebtednessif any) to be permanently reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 4.15, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 4.15(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this Section 4.15(a) exceeds $20.0 million. Pending application of Net Available Cash pursuant to this Section 4.07(a4.15(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.15(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (which may include Priority Lien Debt)2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
Appears in 1 contract
Samples: Third Supplemental Indenture (Pioneer Natural Resources Co)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market including as to the value to be of all non-cash consideration), as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors of compliance with this provision)the Company, of the equity shares and assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than any Preferred Stock or Disqualified Stock) of a Wholly-Wholly Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders holders of the Securities (and to holders of other Senior Subordinated Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness of the Company) pursuant to and subject to the conditions contained of Section 4.06(b); provided, however, that in this Indentureconnection with any prepayment, which repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, the Company or such Restricted Subsidiary shall permanently reduces retire such Indebtedness and shall cause the outstanding amount of such Securities related loan commitment (and such other Senior Indebtednessif any) to be permanently reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 4.06, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 4.06(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $5.0 million. Pending application of Net Available Cash pursuant to this Section 4.07(a4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company (which may include Priority Lien Debt)other than obligations in respect of Disqualified Stock of the Company) or any Restricted Subsidiary (other than obligations in respect of Disqualified Stock and Preferred Stock of a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion.
Appears in 1 contract
Samples: Indenture (Brand Services)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; (2) (A) Disposition and at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or cash equivalentsCash Equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3ii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, (x) to the extent the Company elects (or is required by the terms of any Senior Indebtedness), to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company) within 360 days of such Asset Disposition, (y) at the Company's election to the investment by the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Wholly Owned Subsidiary or such Restricted Subsidiary in long-term assets to replace the assets that were the subject of such Asset Disposition or a long-term asset that (as determined in good faith by the Board of Directors) is not a Subsidiary Guarantor (other than Indebtedness owed directly related to the Company or an Affiliate business of the Company) Company and the Restricted Subsidiaries existing on December 17, 2001, in each case within 540 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retiresDisposition, or reduces (z) a combination of the related loan commitment (if any) for, foregoing purposes within such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased360-day period; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to make a pro rata offer to purchase Notes at par (and, to the extent required by the Company electsinstrument governing such Indebtedness, to acquire Additional Assets or to make capital expenditures in any other Senior Subordinated Indebtedness designated by the Oil Company, at a price no greater than par) plus accrued and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; unpaid interest, and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), for general corporate purposes otherwise not prohibited under this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to make an offer to the Holders clause (and to holders of other Senior Indebtedness of A) or (B) above, the Company designated by or such Subsidiary shall retire such Indebtedness and cause the Companyrelated loan commitment (if any) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase be permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 4.17, the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section except to the extent that the aggregate Net Available Cash from all Asset Dispositions (including any Asset Dispositions made since December 17, 2001) which are not applied in accordance with this Section exceeds $10 million. Pending application of Net Available Cash pursuant to this Section 4.07(a)Section, such Net Available Cash shall be invested in Temporary Cash Investments or applied used to temporarily reduce revolving credit Senior Indebtedness or invested in Cash Equivalents. For the purposes of this Section 4.17, the following is deemed to be cash or Cash Equivalents: the express assumption of Indebtedness (other than any Indebtedness that is by its terms subordinated to the Notes) of the Company or any Restricted Subsidiary, but only to the extent that such assumption is effected on a basis under which may include Priority Lien Debt).there is no further recourse to the Company or any of the Restricted Subsidiaries with respect to such liabilities
Appears in 1 contract
Samples: Indenture (Terex Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless unless: (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market including as to the value to be of all non-cash consideration), as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than any Disqualified Stock) of a Wholly-Owned Restricted Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets within one year (or to make capital expenditures in the Oil enter into a binding commitment therefor within such period and Gas Business acquire such Additional Assets within 540 days 18 months) from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders holders of the Dollar Notes and the Securities (and to holders of other Senior Subordinated Indebtedness of the Company or the Issuer designated by the Company) to purchase purchase, on a pro rata basis, Dollar Notes and Securities (and such other Senior Subordinated Indebtedness of the CompanyCompany or the Issuer) pursuant to and subject to the conditions contained of Section 4.06(b); provided, however, that in this Indentureconnection with any prepayment, which repayment or purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash Indebtedness pursuant to this Section 4.07(a)clause (A) or (C) above, the Company or such Net Available Cash Restricted Subsidiary shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit permanently retire such Indebtedness (which may include Priority Lien Debt).and shall cause the
Appears in 1 contract
Samples: Indenture (GSV Inc /Fl/)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless: (1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at least equal to the fair market value (such fair market value to be determined in advance on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition)Equivalents; and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) : (Aa) first, to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than any Disqualified StockStock or Subordinated Obligations) or Indebtedness of a Wholly-Owned Subsidiary that is not a (other than any Disqualified Stock or Subsidiary Guarantor Subordinated Obligation of a Wholly-Owned Subsidiary Guarantor) (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, provided such however, that, in connection with any prepayment, repayment, redemption repayment or purchase permanently retiresof Indebtedness pursuant to this clause (a), the Company or reduces such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) for, such Indebtedness to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed repaid or purchased; and (Bb) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (Aa), to the extent the Company or such Restricted Subsidiary elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to provided that pending the extent final application of the balance of any such Net Available Cash after application in accordance with clauses clause (Aa) and or clause (B)b) above, to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior its Restricted Subsidiaries may temporarily reduce Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), otherwise invest such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)any manner not prohibited by this Indenture.
Appears in 1 contract
Samples: Indenture (Earth Products, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market Fair Market Value (including as to the value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), all non-cash consideration) of the equity shares and assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than any Disqualified Stock) of a Wholly-Owned Restricted Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders holders of the Securities (and to holders of other Senior Subordinated Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness of the Company) within one year from the later of the date of such Asset Disposition or receipt of such Net Available Cash pursuant to and subject to the conditions contained in this Indenture; provided, which however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, the Company or such Restricted Subsidiary shall permanently reduces retire such Indebtedness and shall cause the outstanding amount of such Securities related loan commitment (and such other Senior Indebtednessif any) to be permanently reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Any Net Proceeds from Asset Sales that are not applied or invested as provided above within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, shall be used for the purpose contemplated in Section 4.06(a)(3)(C). Notwithstanding the foregoing provisions of this Section 4.06, the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this Section 4.06 except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06 exceeds $20.0 million. Pending application of Net Available Cash pursuant to this Section 4.07(a)4.06, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (i) Temporary Cash Investments, (ii) the assumption or discharge of Indebtedness of the Company (other than Obligations in respect of Disqualified Stock of the Company) or any Restricted Subsidiary (other than obligations in respect of Disqualified Stock or Preferred Stock of a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness other than, in each case, Indebtedness constituting Subordinated Obligations in connection with such Asset Disposition, (iii) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion within 90 days of the receipt of such securities; and (iv) any Additional Assets (so long as such Additional Assets are acquired for Fair Market Value in connection with the transaction giving rise to such Asset Disposition; provided, however, that the determination of Fair Market Value must be based on an opinion or appraisal issued by an Independent Qualified Party if such Fair Market Value exceeds $25.0 million), which may include Priority Lien Debt)Additional Assets shall be deemed to have been acquired pursuant to Section 4.03(a)(3)(B) of the first paragraph of this covenant in connection with such Asset Disposition.
Appears in 1 contract
Samples: Asset Purchase Agreement (Wix Filtration Media Specialists, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer the Company's senior management or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); equivalents and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company or any Restricted Subsidiary elects (or is required by the terms of any 54 46 Senior Indebtedness), to prepay, repay, redeem repay or purchase (x) Senior Indebtedness of the Company or any Subsidiary Guarantor or (y) Indebtedness (other than Disqualified Preferred Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 180 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, within one year from the receipt of such Net Available Cash, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), at the Company's election either (x) to the extent the Company elects, to acquire investment in or acquisition of Additional Assets or (y) to make capital expenditures prepay, repay or purchase (1) Senior Indebtedness or (2) Indebtedness (other than Preferred Stock) of a Wholly-Owned Subsidiary (in each case other than Indebtedness owed to the Oil and Gas Business Company); (C) third, within 540 45 days from after the later of the application of Net Available Cash in accordance with clauses (A) and (B) and the date of such Asset Disposition or that is one year from the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to purchase Securities at par plus accrued and unpaid interest, if any, thereon; and (D) fourth, to the Holders extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C), to holders (w) the investment in or acquisition of Additional Assets, (x) the making of Temporary Cash Investments, (y) the prepayment, repayment or purchase of Indebtedness of the Company or Indebtedness of any Subsidiary (other than Indebtedness owed to the Company) or (z) any other purpose otherwise permitted under the Indenture, in each case within the later of 45 days after the application of Net Available Cash in accordance with clauses (A), (B) and (C) or the date that is one year from the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A), (B), (C) or (D) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions, the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this covenant at any time exceed $15 million. The Company shall not be required to make an offer for Securities pursuant to this covenant if the Net Available Cash available therefor (after application of the proceeds as provided in clauses (A) and (B)) is less than $25 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). For the purposes of this covenant, the following will be deemed to be cash: (x) the assumption by the transferee of Senior Indebtedness of the Company designated or Indebtedness of any Restricted Subsidiary of the Company and the release of the Company or such Restricted Subsidiary from all liability on such Senior Indebtedness or Indebtedness in connection with such Asset Disposition (in which case the Company shall, without further action, be deemed to have applied such assumed Indebtedness in accordance with clause (A) of the preceding paragraph) and (y) 55 47 securities received by the CompanyCompany or any Restricted Subsidiary of the Company from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash. Notwithstanding the foregoing, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Swap if (i) at the time of entering into such Asset Swap or immediately after giving effect to purchase Securities such Asset Swap, no Default or Event of Default shall have occurred or be continuing or would occur as a consequence thereof, (and ii) in the event such other Senior Indebtedness Asset Swap involves an aggregate amount in excess of $10 million, the terms of such Asset Swap have been approved by a majority of the members of the Board of Directors of the Company, and (iii) pursuant to and subject in the event such Asset Swap involves an aggregate amount in excess of $50 million, the Company has received a written opinion from an independent investment banking firm of nationally recognized standing that such Asset Swap is fair to the conditions contained in this IndentureCompany or such Restricted Subsidiary, which purchase permanently reduces as the outstanding amount case may be, from a financial point of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)view.
Appears in 1 contract
Samples: Campfire Inc
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer the Company's senior management or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); equivalents and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company or any Restricted Subsidiary elects (or is required by the terms of any Senior Indebtedness), to prepay, repay, redeem repay or purchase (x) Senior Indebtedness of the Company or any Subsidiary Guarantor or (y) Indebtedness (other than Disqualified Preferred Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 180 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, within one year from the receipt of such Net Available Cash, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), at the Company's election either (x) to the extent the Company elects, to acquire investment in or acquisition of Additional Assets or (y) to make capital expenditures prepay, repay or purchase (1) Senior Indebtedness or (2) Indebtedness (other than Preferred Stock) of a Wholly-Owned Subsidiary (in each case other than Indebtedness owed to the Oil and Gas Business Company); (C) third, within 540 45 days from after the later of the application of Net Available Cash in accordance with clauses (A) and (B) and the date of such Asset Disposition or that is one year from the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to purchase Securities at par plus accrued and unpaid interest, if any, thereon; and (D) fourth, to the Holders extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C), to holders (w) the investment in or acquisition of Additional Assets, (x) the making of Temporary Cash Investments, (y) the prepayment, repayment or purchase of Indebtedness of the Company (other than Indebtedness owing to any Subsidiary of the Company) 56 48 or Indebtedness of any Subsidiary (other than Indebtedness owed to the Company) or (z) any other purpose otherwise permitted under the Indenture, in each case within the later of 45 days after the application of Net Available Cash in accordance with clauses (A), (B) and (C) or the date that is one year from the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A), (B), (C) or (D) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions, the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this covenant at any time exceed $5 million. The Company shall not be required to make an offer for Securities pursuant to this covenant if the Net Available Cash available therefor (after application of the proceeds as provided in clauses (A) and (B)) is less than $5 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). For the purposes of this covenant, the following will be deemed to be cash: (x) the assumption by the transferee of Senior Indebtedness of the Company designated or Indebtedness of any Restricted Subsidiary of the Company and the release of the Company or such Restricted Subsidiary from all liability on such Senior Indebtedness or Indebtedness in connection with such Asset Disposition (in which case the Company shall, without further action, be deemed to have applied such assumed Indebtedness in accordance with clause (A) of the preceding paragraph) and (y) securities received by the CompanyCompany or any Restricted Subsidiary of the Company from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash. Notwithstanding the foregoing, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Swap if (i) at the time of entering into such Asset Swap or immediately after giving effect to purchase Securities such Asset Swap, no Default or Event of Default shall have occurred or be continuing or would occur as a consequence thereof, (and ii) in the event such other Senior Indebtedness Asset Swap involves an aggregate amount in excess of $1 million, the terms of such Asset Swap have been approved by a majority of the members of the Board of Directors of the Company, and (iii) pursuant to and subject in the event such Asset Swap involves an aggregate amount in excess of $5 million, the Company has received a written opinion from an independent investment banking firm of nationally recognized standing that such Asset Swap is fair to the conditions contained in this IndentureCompany or such Restricted Subsidiary, which purchase permanently reduces as the outstanding amount case may be, from a financial point of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchasedview. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).57 49
Appears in 1 contract
Samples: Indenture (H R Window Supply Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), Company) of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets equivalents (provided that the amount of (w) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of the Company or any combination thereof Restricted Subsidiary (collectivelyother than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets without recourse to the Company or any of the Restricted Subsidiaries, (x) any notes or other obligations received by the “Cash Consideration”Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of such Asset Disposition, (y) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (By) and Section 4.06(a)(ii)(y) of the 1998 Notes Indenture that is at that time outstanding, not to exceed 5% of Adjusted Consolidated Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of all forms each item of consideration other than Cash Designated Noncash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).being
Appears in 1 contract
Samples: Wesco International Inc
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall Hanover will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless (1) the Company Hanover or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; (2) (A) at least 7580% of the consideration from such Asset Disposition received by the Company Hanover or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition)Equivalents; and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (Hanover or such Restricted Subsidiary, as the case may be) , (A) first, to the extent Hanover or any Restricted Subsidiary, as the Company case may be, elects (or is required by the terms of any Senior Indebtedness), ) to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stockany Preferred Stock or Guarantor Subordinated Obligation) of a Wholly-Owned Restricted Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company Hanover or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available CashHanover); provided, provided such however, that, in connection with any prepayment, repayment, redemption repayment or purchase permanently retiresof Indebtedness pursuant to this clause (A), Hanover or reduces such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) for, such Indebtedness to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed repaid or purchased; and (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, Hanover or such Restricted Subsidiary elects to acquire invest in Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market including as to the value to be of all non-cash consideration), as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors of compliance with this provision)the Company, of the equity shares and assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets equivalents (provided that such 75% requirement shall not apply to any Asset Disposition in which the cash or any combination thereof cash equivalents portion of the consideration received therefor is no less than an amount equal to the product of (collectively, the “Cash Consideration”x) or 4.5 and (By) the fair market value amount of all forms of consideration other than Cash Consideration received by EBITDA for the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed previously completed four fiscal quarters directly attributable to the assets or Capital Stock included in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than any Disqualified Stock) of a Wholly-Wholly Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days thirteen months from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days thirteen months from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer Offer to the Holders holders of the Securities (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in of this Indenture; and (D) fourth, which purchase permanently reduces to the outstanding amount extent of the balance of such Securities Net Available Cash after application in accordance with clauses (A), (B) and (C), for any purpose not prohibited by the terms of this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, the Company or such other Senior IndebtednessRestricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 4.06, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 4.06 except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this Section 4.06 exceeds $20,000,000. In addition, any Net Available Cash received in respect of Permitted Equipment Lease Financings Incurred pursuant to Section 4.03(b)(11) shall not be applied pursuant to Section 4.06(a)(3)(B). Pending application of Net Available Cash pursuant to this Section 4.07(a)4.06, such Net Available Cash shall may be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Senior Indebtedness of the Company or Indebtedness of any Wholly Owned Subsidiary. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (which may include Priority Lien Debt)1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition; and (2) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 90 days of receipt thereof.
Appears in 1 contract
Samples: Buffets Holdings, Inc.
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market including as to the value to be of all non-cash consideration), as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash, cash equivalents, Additional Assets or any combination thereof (collectively"Permitted Consideration"); provided, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by however, that the Company and its Restricted Subsidiaries since September 30shall be permitted to receive Property other than Permitted Consideration, 2017 does so long as the aggregate fair market value, as determined in the good faith of the Board of Directors, of all such Property other than Permitted Consideration received from Asset Dispositions and held by the Company and the Restricted Subsidiaries at any one time shall not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition)Adjusted Consolidated Net Tangible Assets; and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than any Disqualified Stock) of a Wholly-Owned Restricted Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).;
Appears in 1 contract
Samples: Pioneer Natural Resources Co
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company Holdings shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company Holdings or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 75% of the consideration thereof received by the Company Holdings or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); Equivalents and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company Holdings (or such Restricted Subsidiary, as the case may be) (A) first, to the extent Holdings or any Restricted Subsidiary, as the Company case may be, ----- elects (or is required by the terms of any Senior Indebtedness), to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified any Preferred Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company Holdings or an Affiliate of the CompanyHoldings) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 180 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (B) second, to the extent of the balance of such Net Available Cash after ------ application in accordance with clause (A), at Holdings' election to the investment in Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; (C) third, to ----- the extent of the balance of such Net Available Cash after application and in accordance with clauses (A) and (B), to make an offer to purchase Senior Subordinated Notes and other pari passu debt obligations subject to a similar covenant at par plus accrued and unpaid interest, if any, thereon; (D) fourth, to make an offer to purchase (an "Offer") the Discount ------ Notes at a price in cash equal to, prior to November 15, 2002, 100% of the Accreted Value thereof on the purchase date and, thereafter, 100% of the Accreted Value thereof plus accrued and unpaid interest to the purchase date; and (E) fifth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and ), (B), to make an offer to the Holders (C) and to holders of (D), for other Senior Indebtedness of the Company designated general corporate purposes not prohibited by the CompanyIndenture; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) above, Holdings or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase be permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Pending application of Notwithstanding the foregoing provisions, Holdings and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this covenant exceed $5 million. Holdings shall not be required to make an Offer for the Discount Notes pursuant to this Section 4.07(a), such covenant if the Net Available Cash available therefor (after application of the proceeds as provided in clauses (A), (B) and (C)) are less than $5 million for any particular Asset Disposition (which lesser amounts shall be invested in Temporary carried forward for purposes of determining whether an Offer is required with respect to the Net Available Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debtfrom any subsequent Asset Disposition).
Appears in 1 contract
Samples: Details Capital Corp
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer the Company's senior management or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at 50 44 least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); equivalents and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company or any Restricted Subsidiary elects (or is required by the terms of any Senior Indebtedness), to prepay, repay, redeem repay or purchase (x) Senior Indebtedness of the Company or any Subsidiary Guarantor or (y) Indebtedness (other than Disqualified Preferred Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 180 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, within one year from the receipt of such Net Available Cash, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), at the Company's election either (x) to the extent the Company elects, to acquire investment in or acquisition of Additional Assets or (y) to make capital expenditures prepay, repay or purchase (1) Senior Indebtedness or (2) Indebtedness (other than Preferred Stock) of a Wholly-Owned Subsidiary (in each case other than Indebtedness owed to the Oil Company); and Gas Business (C) third, within 540 45 days from after the later of the application of Net Available Cash in accordance with clauses (A) and (B) and the date of such Asset Disposition or that is one year from the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to purchase Securities, 1997 Securities and other Senior Subordinated Indebtedness, to the Holders extent required pursuant to the terms thereof, pro rata at 100% of the tendered principal amount thereof (or 100% of the accreted value of such other Senior Subordinated Indebtedness so tendered, if such Senior Subordinated Indebtedness was issued at a discount) plus accrued and unpaid interest, if any, thereon to holders the date of other purchase. The balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) may be used by the Company in any manner not otherwise prohibited under this Indenture or the 1997 Indenture. Notwithstanding anything herein to the contrary, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A), (B) or (C) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions, the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions since the 1997 Security Issue Date which are not applied in accordance with this Section 4.6 at any time exceed $15 million. The Company shall not be required to make an offer for Securities or 1997 Securities pursuant to this Section 4.6 if the Net Available Cash available therefor (after application of the proceeds as provided in clauses (A) and (B)) is less than $25 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). For the purposes of this Section 4.6, the following will be deemed to be cash: (x) the assumption by the transferee of Senior Indebtedness of the Company designated or Indebtedness of any Restricted Subsidiary of the Company and the release of the Company or such Restricted Subsidiary from all liability on such Senior Indebtedness or Indebtedness in connection with such Asset Disposition (in which case the Company shall, without further action, be deemed to 51 45 have applied such assumed Indebtedness in accordance with clause (A) of the preceding paragraph) and (y) securities received by the Company) to purchase Securities (and such other Senior Indebtedness Company or any Restricted Subsidiary of the CompanyCompany from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash. Notwithstanding the foregoing, the Company and its Restricted Subsidiaries shall be permitted to consummate an Asset Swap if (i) pursuant immediately after giving effect to such Asset Swap, no Default or Event of Default shall have occurred or be continuing, (ii) in the event such Asset Swap involves an aggregate amount in excess of $10 million, the terms of such Asset Swap have been approved by a majority of the members of the Board of Directors, and subject (iii) in the event such Asset Swap involves an aggregate amount in excess of $50 million, the Company has received a written opinion from an independent investment banking firm of nationally recognized standing that such Asset Swap is fair to the conditions contained in this IndentureCompany or such Restricted Subsidiary, which purchase permanently reduces as the outstanding amount case may be, from a financial point of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)view.
Appears in 1 contract
Samples: Indenture (Viasystems Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless: (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market including as to the value to be of all non-cash consideration), as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition)Equivalents; and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) : (A) firstFIRST, to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Senior Indebtedness), to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stockany Preferred Stock or Guarantor Subordinated Obligation) of a Wholly-Owned Restricted Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; PROVIDED, provided such HOWEVER, that, in connection with any prepayment, repayment, redemption repayment or purchase permanently retiresof Indebtedness pursuant to this clause (A), the Company or reduces such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) for, such Indebtedness to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed repaid or purchased; and (B) secondSECOND, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company or such Restricted Subsidiary elects, to acquire invest in Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).
Appears in 1 contract
Samples: Georgia Gulf Corp /De/
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 7585% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash cash, provided that with respect to the sale or cash equivalents, Additional Assets or any combination thereof (collectivelyother disposition of an operational Academy, the “Cash Consideration”Company shall be deemed to be in compliance with this clause (ii) or (B) if the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (Consolidated Coverage Ratio after giving effect to such Asset Disposition); sale or disposition and the application of proceeds received therefrom is greater than or equal to the Consolidated Coverage Ratio immediately prior to giving effect to such sale or disposition and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), ) to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to outstanding under the Company or an Affiliate of the Company) Credit Agreement within 540 days from 18 months after the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company or such Restricted Subsidiary elects, to acquire reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or to make capital expenditures in the Oil and Gas Business another Restricted Subsidiary) within 540 days 18 months from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) Offer to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained set forth in this IndentureSection 4.06(b); provided, which purchase permanently reduces however, that if the outstanding amount Company elects (or is required by the terms of such Securities (and such any other Senior Indebtedness), such Offer may be made ratably to purchase the Securities and other Senior Indebtedness of the Company, and (D) fourth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C), to (x) acquire Additional Assets (other than Indebtedness and Capital Stock) or (y) prepay, repay or purchase Indebtedness of the Company (other than Indebtedness owed to an Affiliate of the Company and other than Disqualified Stock of the Company) or Indebtedness of any Restricted Subsidiary (other than Indebtedness owed to the Company or an Affiliate of the Company), in each case described in this clause (D) within 18 months from the receipt of such Net Available Cash or, if the Company has made an Offer pursuant to clause (C), six months from the date such Offer is consummated; provided, however that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A), (C) or (D) above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Pending application Notwithstanding the foregoing provisions of this covenant, the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash pursuant to in accordance with this Section 4.07(a), such 4.06 except to the extent that the aggregate Net Available Cash shall from all Asset Dispositions that is not applied in accordance with this covenant exceeds $10,000,000. For the purposes of clause (ii) of this Section 4.06(a), the following are deemed to be invested cash: (x) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in Temporary Cash Investments connection with such Asset Disposition and (y) securities received by the Company or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
Appears in 1 contract
Samples: Indenture (Lpa Services Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary 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) at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), Fair Market Value of the equity shares and assets subject to such Asset Disposition; Disposition and (2) (Aii) at least 7580% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash cash, Temporary Cash Investments or cash equivalents, Additional Assets or any combination thereof other Qualified Proceeds (collectively, provided that the “Cash Consideration”) or aggregate Fair Market Value of Qualified Proceeds (B) the fair market value of all forms of consideration other than cash and Temporary Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does Investments) shall not exceed in $10.0 million since the aggregate 10% Closing Date). Within 365 days after the receipt of ACNTA at the time of the applicable Asset Disposition (after giving effect to any Net Available Cash from such Asset Disposition); and (3) , the Company or such Restricted Subsidiary may apply an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by (w) to repay or cash collateralize any Credit Agreement Obligations or the Company (or such Restricted Subsidiary, as the case may be) (A) firstNotes, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior repay Indebtedness of the Company or any Subsidiary Guarantor of its Restricted Subsidiaries secured by assets not in the Collateral, or to repay any Indebtedness (other than Disqualified Stock) of a Wholly-Owned any Restricted Subsidiary that is not a Subsidiary Guarantor Guarantor; (x) to acquire all or substantially all of the assets of another Permitted Business; (y) to make a capital expenditure; or (z) to acquire other than long-term assets that are used or useful in the Permitted Business; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness owed pursuant to clause (x) above, the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of Restricted Subsidiary shall retire such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces Indebtedness and shall cause the related loan commitment (if any) for, such Indebtedness to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed repaid or purchased; . For the purposes of clause (a)(ii) of this Section 4.06 only, the following are deemed to be cash: (A) the assumption of any liabilities (as shown on the Company's or a Restricted Subsidiary's most recent balance sheet) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability in connection with such Asset Disposition and (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent any securities or other obligations received by the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days any Restricted Subsidiary from the later transferee that are converted within 90 days of receipt by the date Company or such Restricted Subsidiary into cash. Pending the final application of such Asset Disposition or the receipt of such any Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and or such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to Restricted Subsidiary may temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)borrowings or otherwise invest the Net Available Cash in any manner that is not prohibited by this Indenture.
Appears in 1 contract
Samples: On Semiconductor Corp
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at least equal to the fair market value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity and assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30January 1, 2017 2016 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, (i) if the assets subject to such Asset Disposition constitute Collateral, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Priority Lien Debt and other outstanding Priority Lien Obligations or Parity Lien Debt and other outstanding Parity Lien Obligations (in each case, other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased (and, with respect to Parity Lien Debt, such prepayment, repayment, redemption or purchase must be made either (x) for Securities only or (y) for Securities and other Parity Lien Debt, and in the case of subclause (y), by a pro rata prepayment, repayment or redemption of outstanding Securities and such other Parity Lien Debt or by an offer to purchase on a pro rata basis made to all holders of Securities and such other Parity Lien Debt) or (ii) if the assets subject to such Asset Disposition do not constitute Collateral, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor in each case that is Secured Debt or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 44 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided that, without limitation of the provisions of Section 10.03, any such Additional Assets, including the assets of any Person that becomes a Subsidiary Guarantor as a result of such transaction, acquired with Net Available Cash from an Asset Disposition of Collateral are, to the extent required by the Priority Lien Documents or the Security Documents (and pursuant to the terms thereof), pledged as Collateral; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness Parity Lien Debt of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness Parity Lien Debt of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior IndebtednessParity Lien Debt) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).
Appears in 1 contract
Samples: Indenture (Denbury Resources Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market including as to the value to be of all non-cash consideration), as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; (2) (A) Disposition and at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents. For the purposes of this Section 10.13, Additional Assets the following are deemed to be cash or cash equivalents: (x) the assumption of Indebtedness of the Company or any combination Restricted Subsidiary, (y) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days after receipt thereof and (collectively, the “Cash Consideration”z) or (B) the fair market value of all forms of consideration other than Cash any Designated Noncash Consideration received by the Company and or any of its Restricted Subsidiaries since September 30in such Asset Sale having an aggregate fair market value, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable taken together with all other Designated Noncash Consideration received pursuant to this clause With respect to any Asset Disposition occurring on or after the Issue Date from which the Company or any Restricted Subsidiary receives Net Available Cash, the Company or such Restricted Subsidiary shall (i) within 360 days after giving effect to the date such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, received and to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Senior Indebtedness), ) to (A) apply an amount equal to such Net Available Cash to prepay, repay, redeem repay or purchase Indebtedness under the Senior Credit Agreements or Indebtedness of secured by a Permitted Lien, in each case owing to a Person other than the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company or an Affiliate of the Company, or (B) within 540 days from the later of the date of such Asset Disposition invest an equal amount, or the receipt amount not so applied pursuant to clause (A), in Additional Assets (including by means of such an Investment in Additional Assets by a Restricted Subsidiary with Net Available CashCash received by the Company or another Restricted Subsidiary) and (ii) apply such excess Net Available Cash (to the extent not applied pursuant to clause (i)) as provided in the following paragraphs of this Section 10.13; provided, provided such however, that in connection with any prepayment, repayment, redemption repayment or purchase permanently retiresof Indebtedness pursuant to clause (A) above, the Company or reduces such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) for, such Indebtedness to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed repaid or purchased; (B) second, to the extent . The amount of the balance of such Net Available Cash after application in accordance with required to be applied pursuant to clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil ii) above and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. not theretofore so applied shall constitute "Excess Proceeds." Pending application of Net Available Cash pursuant to this Section 4.07(a)provision, such Net Available Cash shall be invested in Temporary Cash Investments or applied Investments. If at any time the aggregate amount of Excess Proceeds not theretofore subject to temporarily reduce revolving credit Indebtedness an Excess Proceeds Offer (as defined below) totals at least $15 million the Company shall, not later than 30 days after the end of the period during which may include Priority Lien Debtthe Company is required to apply such Excess Proceeds pursuant to clause (i) of the immediately preceding paragraph of this Section 10.13(a) (or, if the Company so elects, at any time within such period)., make an offer (an "Excess Proceeds Offer") to purchase from the Holders on a pro rata basis an aggregate principal amount of Notes equal to the Excess Proceeds (rounded down to the nearest multiple of $1,000) on such date, at a purchase price equal to 100% of the principal amount of such Notes, plus, in each case, accrued interest (if any) to the date of purchase (the "Excess Proceeds Payment"). Upon completion of an Excess Proceeds Offer the amount of Excess Proceeds remaining
Appears in 1 contract
Samples: Signature Resorts Inc
Limitation on Sales of Assets and Subsidiary Stock. (ad) The Company shall Hanover will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless (1) the Company Hanover or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; (2) (A) at least 7580% of the consideration from such Asset Disposition received by the Company Hanover or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition)Equivalents; and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (Hanover or such Restricted Subsidiary, as the case may be) , (A) first, to the extent Hanover or any Restricted Subsidiary, as the Company case may be, elects (or is required by the terms of any Senior Indebtedness), ) to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stockany Preferred Stock or Guarantor Subordinated Obligation) of a Wholly-Owned Restricted Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company Hanover or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available CashHanover); provided, provided such however, that, in connection with any prepayment, repayment, redemption repayment or purchase permanently retiresof Indebtedness pursuant to this clause (A), Hanover or reduces such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) for, such Indebtedness to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed repaid or purchased; and (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, Hanover or such Restricted Subsidiary elects to acquire invest in Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market including as to the value to be of all non-cash consideration), as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; (2) (A) , and at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets . With respect to any Asset Disposition occurring on or after the Issue Date from which the Company or any combination thereof (collectivelyRestricted Subsidiary receives Net Available Cash, the “Cash Consideration”Company or such Restricted Subsidiary shall: (i) or (B) within 360 days after the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to date such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, received and to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Senior Indebtedness), ) to (A) apply an amount equal to such Net Available Cash to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (such Restricted Subsidiary, in each case owing to a Person other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company or an any Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) secondinvest an equal amount, or the amount not so applied pursuant to the extent of the balance of such Net Available Cash after application in accordance with clause (A), in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary) and (ii) apply such excess Net Available Cash (to the extent the Company elects, not applied pursuant to acquire Additional Assets or to make capital expenditures clause (i)) as provided in the Oil and Gas Business within 540 days from the later following paragraphs of the date this Section 4.6; provided, however, that in connection with any prepayment, repayment or purchase of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, Senior Indebtedness pursuant to the extent of the balance of such Net Available Cash after application in accordance with clauses clause (A) and (B)above, to make an offer to the Holders (and to holders of other Company or such Restricted Subsidiary shall retire such Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).cause the
Appears in 1 contract
Samples: Hollywood Entertainment Corp
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at least equal to the fair market value (such fair market value to be determined in advance on the date of contractually agreeing to such Asset Disposition in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or the Board of Directors if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity and assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Secured Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than any Disqualified Stock) of a Wholly-Wholly Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas a Permitted Business within 540 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and and/or (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders holders of the Securities (and to holders of other Senior Pari Passu Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Pari Passu Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indentureherein, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchasedas set forth below. Pending application of Net Available Cash pursuant to this Section 4.07(a)covenant, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness Indebtedness. For the purposes of Section 4.07(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 (which may include Priority Lien Debt)other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to (A) a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability or (B) an assignment agreement that includes, in lieu of such a release, the agreement of the transferee or its parent company to indemnify and hold harmless the Company or such Restricted Subsidiary from and against any loss, liability or cost in respect of such assumed liability, shall be deemed to be cash or cash equivalents.
Appears in 1 contract
Samples: Indenture (CONSOL Energy Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition with respect to First-Priority Collateral unless (1i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity Capital Stock and assets subject to such Asset Disposition; , (2) (Aii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of (A) cash or cash equivalentsTemporary Cash Investments, Additional (B) First-Priority Assets to be owned by the Company or any combination thereof Restricted Subsidiary and used in a Permitted Business, to the extent they are concurrently with their acquisition added to the First-Priority Collateral securing the Securities, or (collectivelyC) Capital Stock in one or more Persons engaged in a Permitted Business that are or thereby become Wholly Owned Subsidiaries of the Company and (iii) to the extent Capital Stock of a Person is received by the Company and its Restricted Subsidiaries pursuant to clause (ii)(C) above, assets of such Person that qualify as First-Priority Assets with a fair market value that is equal to or greater than (A) 75% of the “Cash Consideration”) or fair market value of the First-Priority Collateral that is the subject of such Asset Disposition less (B) the fair market value of all forms of any consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in pursuant to clause (ii)(A) or (B) above are concurrently with the aggregate 10% of ACNTA at acquisition added to the time of First-Priority Collateral securing the applicable Asset Disposition (after giving effect to such Asset Disposition)Securities; and (3iv) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).):
Appears in 1 contract
Samples: Indenture (Uniplast Industries Co)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless: (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or cash equivalentsCash Equivalents, Additional Assets (the value of which shall be determined conclusively by the Board of Directors acting in good faith, such determination to be accompanied by a fairness opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value is estimated to exceed $50 million) or any combination thereof (collectively"Permitted Consideration"); provided, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by however, that the Company and its Restricted Subsidiaries since September 30shall be permitted to receive Property (the value of which shall be determined conclusively by the Board of Directors acting in good faith, 2017 does such determination to be accompanied by a fairness opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value is estimated to exceed $50 million) other than Permitted Consideration, so long as the aggregate fair market value, as so determined, of all such Property other than Permitted Consideration received from Asset Dispositions and held by the Company and the Restricted Subsidiaries at any one time shall not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition)Adjusted Consolidated Net Tangible Assets; and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) : (A) first, to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Senior Indebtedness), to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified any Preferred Stock) of a Wholly-Owned Restricted Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, provided such however, that, in connection with any prepayment, repayment, redemption repayment or purchase permanently retiresof Indebtedness pursuant to this clause (a), the Company or reduces such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) for, such Indebtedness to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed repaid or purchased; provided that, prior to such retirement, the Company or its Restricted Subsidiaries may temporarily repay Senior Indebtedness with the Net Available Cash; and (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (Aa), to the extent the Company or such Restricted Subsidiary elects, to acquire invest in Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) thirdprovided that, prior to such investment, the extent of Company or its Restricted Subsidiaries may temporarily repay Senior Indebtedness with the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)Cash.
Appears in 1 contract
Samples: Triton Energy LTD
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 75% (or 50% in the case of an Asset Disposition relating to the Specified Real Estate) of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) firstFIRST, within one year from the later of such Asset Disposition or the receipt of such Net Cash Proceeds, either (1) to the extent the Company elects (or is required by the terms of any IndebtednessSenior Indebtedness or Indebtedness (other than Preferred Stock) of a Wholly Owned Subsidiary), to prepay, repay, redeem redeem, defease or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or such Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from or (2) to the later extent the Company or such Restricted Subsidiary elects, to reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary), or (3) a combination of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchasedforegoing; (B) secondSECOND, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to make an Offer to purchase Securities pursuant to and subject to the extent conditions of Section 4.06(b), PROVIDED that if the Company electselects (or is required by the terms of any Senior Subordinated Indebtedness), such Offer may be made to acquire Additional Assets or to make capital expenditures in ratably purchase the Oil Securities and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; other Senior Subordinated Indebtedness and (C) thirdTHIRD, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior prepay, repay, redeem, defease or purchase Indebtedness of the Company designated by (other than Indebtedness owed to an Affiliate of the Company) to purchase Securities (Company and such other Senior Indebtedness than Disqualified Stock of the Company) or Indebtedness of any Restricted Subsidiary (other than Indebtedness owed to the Company or an Affiliate of the Company), in each case described in this clause (C) within one year from the receipt of such Net Available Cash or, if the Company has made an Offer pursuant to clause (B), six months from the date such Offer is consummated; PROVIDED, HOWEVER that in connection with any prepayment, repayment, redemption, defeasance or purchase of Indebtedness pursuant to clause (A), (B) or (C) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and subject shall cause the related loan commitment (if any) to the conditions contained in this Indenture, which purchase be permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid, redeemed, defeased or purchased. Pending application Notwithstanding the foregoing provisions of this covenant, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash pursuant to in accordance with this Section 4.07(a), such except to the extent that the aggregate Net Available Cash shall from all Asset Dispositions that is not applied in accordance with this Section 4.06 exceeds $10,000,000. For the purposes of this Section 4.06, the following are deemed to be invested cash: (x) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in Temporary Cash Investments connection with such Asset Disposition, (y) securities received by the Company or applied any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash and (z) in the case of an Asset Disposition relating to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).the Specified Real Estate, REIT Securities. 62
Appears in 1 contract
Samples: Argo Tech Corp
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless: (1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at least equal to the fair market value (such fair market including the value to be of all non-cash consideration), as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition)Equivalents; and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) : (A) first, to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than any Disqualified StockStock or Subordinated Obligations) or Indebtedness of a Wholly-Owned Restricted Subsidiary that is not (other than any Disqualified Stock or Guarantor Subordinated Obligation of a Subsidiary Guarantor Guarantor) (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, provided such however, that, in connection with any prepayment, repayment, redemption repayment or purchase permanently retiresof Indebtedness pursuant to this clause (A), the Company or reduces such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) for, such Indebtedness to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed repaid or purchased; provided, further, that the Company or such Restricted Subsidiary shall not be required to reduce the related commitment (if at all) to an aggregate principal amount less than $175.0 million; and (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company or such Restricted Subsidiary elects, to acquire invest in Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to provided that pending the extent final application of the balance of any such Net Available Cash after application in accordance with clauses clause (Aa) and or clause (B)b) above, to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior its Restricted Subsidiaries may temporarily reduce Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), otherwise invest such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)any manner not prohibited by the Indenture.
Appears in 1 contract
Samples: Georgia Gulf Corp /De/
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate any an Asset Disposition unless (1) the Company or such the applicable Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value of the assets sold or otherwise disposed of (such fair market value to be as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Company's Board of Directors, which determination shall be conclusive evidence Directors or senior management of compliance with this provisionthe Company), of the equity and assets subject to such Asset Disposition; (2) (A2)(A) at least 75% of the consideration received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be, from such Asset Disposition shall be in the form of cash or Temporary Cash Investments and is received at the time of such disposition and (B) (A) first, at least 15% of such consideration received if in a form other than cash or Temporary Cash Investments is converted into or exchanged for cash or Temporary Cash Investments within 90 days of such disposition. In the event and to the extent that the Company elects (or is required Net Available Cash received by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Restricted Subsidiary Guarantor from one or Indebtedness more Asset Dispositions occurring on or after the Closing Date in any period of 12 consecutive months exceeds $5.0 million, then the Company shall (other i) within 180 days after the date such Net Available Cash so received exceeds such $5.0 million invest an amount equal to such excess in Additional Assets or in one or more Permitted Joint Ventures or Permitted Business Investments or (ii) apply an amount equal to such excess (to the extent not applied pursuant to clause (i)) as provided in the following paragraphs of this Section 4.06. The amount of such excess Net Available Cash required to be applied during the applicable period and not applied (or designated by the Company as not to be so applied) as so required by the end of such period shall constitute "Excess Proceeds." Notwithstanding the foregoing paragraph, if the Company consummates the Designated Transaction, then the Company (i) shall, on a date which is not less than Disqualified Stock15 nor more than 30 days after the date on which the Designated Transaction is consummated, offer to purchase from all Holders an amount not less than $35,000,000 (expressed as an integral multiple of $1,000) of the Securities at a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed purchase price equal to the Company or an Affiliate 104% of the Company) within 540 days from the later of stated principal amount thereof plus accrued and unpaid interest thereon to the date of purchase (subject to the right of Holders on the relevant record date to receive interest on the relevant interest payment date) and purchase any Securities tendered in response to such offer (up to an amount equal to $35,000,000), and (ii) may use the Net Available Cash received from the Designated Transaction less an amount equal to the amount required to repurchase Securities tendered in response to the offer made under the immediately preceding clause (i) in a manner contemplated by clause (b)(iii) of Section 4.04. Any remaining Net Available Cash received from the Designated Transaction and not used pursuant to the immediately preceding clauses (i) and (ii) shall be applied in accordance with the immediately preceding paragraph of this Section 4.06. Notwithstanding the foregoing two paragraphs, if the Company consummates any Asset Disposition other than the Designated Transaction, then the Company (i) shall, on a date which is not less than 15 nor more than 30 days after the date on which such Asset Disposition or is consummated, offer to purchase from all Holders an amount not less than the receipt Collateral Maintenance Tender Offer Amount (expressed as an integral multiple of $1,000) of the Securities at a purchase price equal to 105% of the stated principal amount thereof plus accrued and unpaid interest thereon to the date of purchase (subject to the right of Holders on the relevant record date to receive interest on the relevant interest payment date) and purchase any Securities tendered in response to such offer (up to an amount equal to the Collateral Maintenance Tender Offer Amount); and (ii) may use the Net Available Cash received from such Asset Disposition less an amount equal to the amount required to repurchase Securities tendered in response to the offer made under the immediately preceding clause (i) in a manner contemplated by clause (b)(iii) of Section 4.04. Any remaining Net Available Cash received from such Asset Disposition and not used pursuant to the immediately preceding clauses (i) and (ii) shall be applied in accordance with the immediately second preceding paragraph of this Section 4.06. If, as of the first day of any calendar month, the aggregate amount of Excess Proceeds not theretofore subject to an Excess Proceeds Offer (as defined below) totals at least $5.0 million, the Company must, not later than the fifteenth Business Day of such Net Available Cashmonth, provided make an offer (an "Excess Proceeds Offer") to purchase from the Holders on a pro rata basis an aggregate stated principal amount of Securities equal to the Excess Proceeds (rounded down to the nearest multiple of $1,000) on such prepaymentdate, repaymentat a purchase price equal to 105% of the stated principal amount of such Securities, redemption or purchase permanently retiresplus, or reduces the related loan commitment in each case, accrued interest (if any) forto the date of purchase (the "Excess Proceeds Payment"). The Company shall commence any Excess Proceeds Offer with respect to the Securities by mailing a written notice to the Trustee and each Holder stating: (A) that the Excess Proceeds Offer is being made pursuant to this Section 4.06 and that all Securities validity tendered will be accepted for payment on a pro rata basis; (B) the purchase price and the date of purchase (which shall be a Business Day no earlier than 30 days nor later than 60 days from the date such notice is mailed) (the "Excess Proceeds Payment Date"); (C) that any Security not tendered will continue to accrue interest pursuant to its terms; (D) that, unless the Company defaults in the payment of the Excess Proceeds Payment, any Security accepted for payment pursuant to the Excess Proceeds Offer shall cease to accrue interest on and after the Excess Proceeds Payment Date; (E) that Holders electing to have a Security purchased pursuant to the Excess Proceeds Offer will be required to surrender the Security, together with the form entitled "Option of Holder to Elect Purchase" on the reverse side of the Security completed, to the Paying Agent at the address specified in the notice prior to the close of business on the Business Day immediately preceding the Excess Proceeds Payment Date; (F) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the third Business Day immediately preceding the Excess Proceeds Payment Date, a telegram, facsimile transmission or letter setting forth the name of such Indebtedness Holder, the stated principal amount of Securities delivered for purchase and a statement that such Holder is withdrawing his election to have such Securities purchased; and (G) that Holders whose Securities are being purchased only in part will be issued new Securities equal in stated principal amount to the unpurchased portion of the Securities surrendered; provided, however, that each Security purchased and each new Security issued shall be in a stated principal amount of $1,000 or integral multiples thereof. On the Excess Proceeds Payment Date, the Company shall (A) accept for payment on a pro rata basis Securities or portions thereof tendered pursuant to the Excess Proceeds Offer, (B) deposit with the Paying Agent money sufficient to pay the purchase price of all Securities or portions thereof so accepted, and (C) deliver, or cause to be delivered, to the Trustee all Securities or portions thereof so accepted together with an Officers' Certificate specifying the Securities or portions thereof so accepted for payment by the Company. The Paying Agent shall promptly mail to the Holders of Securities so accepted payment in an amount equal to the purchase price, and the Trustee shall promptly authenticate and mail to such Holders a new Security equal in stated principal amount so prepaidto any unpurchased portion of the Security surrendered; provided, repaidhowever; that each Security purchased and each new Security issued shall be in a stated principal amount of $1,000 or integral multiples thereof. The Company will publicly announce the results of the Excess Proceeds Offer as soon as practicable after the Excess Proceeds Payment Date. For purposes of this Section 4.06, redeemed or purchased; (B) secondthe Trustee shall act as the Paying Agent. The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the balance of Exchange Act and any other securities laws or regulations thereunder in the event that such Net Available Cash after application in accordance with clause (A), Excess Proceeds are received by the Company under this Section 4.06 and the Company is required to repurchase Securities as described above. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.06, the Company elects, shall comply with the applicable securities laws and regulations and shall not be deemed to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to have breached its obligations under this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)4.06 by virtue thereof.
Appears in 1 contract
Samples: Concorde Gas Marketing Inc
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate to make any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision)Fair Market Value, of the equity shares and assets subject to such Asset Disposition; (2) except in the case of a Permitted Asset Swap or the sale for noncash consideration of any of the capital stock of PT Indocopper Investment (Aprovided that, at the time of such sale, PT Indocopper Investment does not own any assets other than 9.36% of the Capital Stock of PT Freeport Indonesia) of up to 9.36% of the Capital Stock of PT Freeport Indonesia, at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition)cash; and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem purchase, repurchase, redeem, retire, defease or purchase Senior Indebtedness otherwise acquire for value amounts payable under or in respect of the Company or any Subsidiary Guarantor Credit Agreement, the Existing Freeport Notes or Indebtedness (other than Disqualified obligations in respect of Preferred Stock) of a Wholly-Owned Restricted Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the CompanyCompany and other than obligations in respect of Disqualified Stock) within 540 180 days from after the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or to make capital expenditures in the Oil and Gas Business another Restricted Subsidiary) within 540 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) Offer to purchase Securities (and of such other Senior Indebtedness of the Company) series pursuant to and subject to the conditions contained set forth in this IndentureSection 4.05(b); provided, which purchase permanently reduces however, that if the outstanding amount Company elects (or is required by the terms of such Securities (and such any other Senior Indebtedness), such Offer may be made ratably to purchase such Securities and other Senior Indebtedness (including the Securities of the other series) of the Company; and (D) fourth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C), for any general corporate purpose permitted by the terms of this Indenture; provided, however, that in connection with any prepayment, repayment, purchase, repurchase, redemption, retirement, defeasance or other acquisition for value of Indebtedness pursuant to clause (A), (C) or (D) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid, purchased, repurchased, redeemed, retired, defeased or otherwise acquired for value. Notwithstanding the foregoing provisions of this Section 4.05, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 4.05(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.05(a) exceeds $300.0 million. Pending application of Net Available Cash pursuant to this Section 4.07(a4.05(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.05(a), the following are deemed to be cash: (i) the assumption of Indebtedness of the Company (which may include Priority Lien Debt).other than obligations in respect of Disqualified Stock of the Company) or any Restricted Subsidiary (other than Obligations in respect of Disqualified Stock or Preferred Stock of a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and
Appears in 1 contract
Samples: Freeport McMoran Copper & Gold Inc
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, to consummate any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market including as to the value to be of all noncash consideration), as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; , and (2) (Aii) at least 75% (or 100% in the case of lease payments) of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, . In the “event and to the extent that the aggregate Net Available Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its or any Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Subsidiary from one or more Asset Disposition occurring on or after the Issue Date exceeds $10 million, then the Company or such Restricted Subsidiary shall (A) within 360 days after giving effect to the receipt of such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, and to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Senior Indebtedness), ) to (1) apply an amount equal to such excess Net Available Cash to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or such Restricted Subsidiary, in each case owing to a Person other than the Company or any Subsidiary Guarantor Affiliate of the Company or Indebtedness (2) invest (or enter into a binding commitment to invest, provided that such commitment shall be subject only to customary -------- conditions (other than Disqualified Stockfinancing) and such investment shall be consummated within 360 days after the end of such 360-day period) an equal amount, or the amount not so applied pursuant to clause (1), in Additional Assets (including by means of an Investment in Additional Assets by a Wholly-Owned Restricted Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to with Net Available Cash received by the Company or an Affiliate of the Companyanother Restricted Subsidiary) within 540 days from the later of the date of and (B) apply such Asset Disposition or the receipt of such excess Net Available CashCash (to the extent not applied pursuant to clause (A)), provided such to make an Offer (as defined below) to purchase Securities pursuant to and subject to the conditions of Section 4.06(b); provided, however that in -------- ------- connection with any prepayment, repayment, redemption repayment or purchase permanently retiresof Senior Indebtedness pursuant to clause (A) above, the Company or reduces such Restricted Subsidiary shall retire such Senior Indebtedness and shall cause the related loan commitment (if any) for, such Indebtedness to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed repaid or purchased; (B) secondprovided further, however, that the Company or ---------------- ------- such Restricted Subsidiary shall not be required to permanently reduce the extent related loan commitment in the case of the balance any such prepayment, repayment or purchase with Net Available Cash from any Asset Disposition of Non-Core Assets, so long as an amount equal to 100% of such Net Available Cash after application is invested in accordance with Additional Assets within the period required pursuant to clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days from the later of the date B) above. The amount of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such excess Net Available Cash after application in accordance with clauses (A) and required to be applied pursuant to clause (B), to make an offer to the Holders () above and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchasednot theretofore so applied shall constitute "Excess Proceeds". Pending application of Net Available Cash pursuant to this Section 4.07(a)covenant, such Net Available Cash shall be invested in Temporary Cash Investments Investments. For the purposes of this Section 4.06 (a) (ii), the following are deemed to be cash: (x) the assumption of Senior Indebtedness of the Company or applied to temporarily reduce revolving credit any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (which may include Priority Lien Debt)y) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
Appears in 1 contract
Samples: Delco Remy International Inc
Limitation on Sales of Assets and Subsidiary Stock. (a1) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; (2) (A) Disposition and at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or cash equivalentsCash Equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3ii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, (x) to the extent the Company elects (or is required by the terms of any Senior Indebtedness), to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company) within 360 days of such Asset Disposition, (y) at the Company's election to the investment by the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Wholly Owned Subsidiary or such Restricted Subsidiary in long-term assets to replace the assets that were the subject of such Asset Disposition or a long-term asset that (as determined in good faith by the Board of Directors) is not a Subsidiary Guarantor (other than Indebtedness owed directly related to the Company or an Affiliate business of the Company) Company and the Restricted Subsidiaries existing on the Issue Date, in each case within 540 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retiresDisposition, or reduces (z) a combination of the related loan commitment (if any) for, foregoing purposes within such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased360-day period; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause clauses (A), to make a pro rata offer to purchase Notes at par (and, to the extent required by the Company electsinstrument governing such Indebtedness, to acquire Additional Assets or to make capital expenditures in any other Senior Subordinated Indebtedness designated by the Oil Company, at a price no greater than par) plus accrued and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; unpaid interest, and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B),for general corporate purposes otherwise not prohibited under the Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (B)) above, to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by or such Subsidiary shall retire such Indebtedness and cause the Companyrelated loan commitment (if any) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase be permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section, the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this Section exceeds $10 million. Pending application of Net Available Cash pursuant to this Section 4.07(a)Section, such Net Available Cash shall be invested in Temporary Cash Investments or applied used to temporarily reduce revolving credit Senior Indebtedness or invested in Cash Equivalents. For the purposes of this covenant, the following is deemed to be cash or Cash Equivalents: the express assumption of Indebtedness (other than any Indebtedness that is by its terms subordinated to the Notes) of the Company or any Restricted Subsidiary, but only to the extent that such assumption is effected on a basis under which may include Priority Lien Debt)there is no further recourse to the Company or any of the Restricted Subsidiaries with respect to such liabilities.
Appears in 1 contract
Samples: Indenture (Terex Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market including as to the value to be of all non-cash consideration), as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; (2) (A) Disposition and at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets equivalents (provided that such 75% requirement shall not apply to any Asset Disposition in which the cash or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time cash equivalents portion of the applicable consideration received therefor, determined in accordance with this covenant, is equal to or greater than what the net after-tax proceeds would have been had the Asset Disposition (after giving effect to complied with such Asset Disposition); 75% requirement) and (3ii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any a Subsidiary Guarantor or Indebtedness (other than any Disqualified Stock) of a Wholly-Wholly Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (CB) thirdsecond, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B)application, to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).if any,
Appears in 1 contract
Samples: Indenture (Mediq Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, consummate make any Asset Disposition 50 44 unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer the Company's senior management or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; (2) (Aii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company or any Subsidiary elects (or is required by the terms of any Senior Indebtedness or Guarantor Senior Indebtedness), to prepay, repay, redeem repay or purchase (x) Senior Indebtedness of the Company or any Subsidiary Guarantor Senior Indebtedness or (y) Indebtedness (other than Disqualified Stock) of a Wholly-Wholly Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 180 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, within one year from the receipt of such Net Available Cash, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), at the Company's election either (x) to the extent the Company elects, to acquire investment in or acquisition of Additional Assets or (y) to make capital expenditures prepay, repay or purchase (1) Senior Indebtedness or Guarantor Senior Indebtedness or (2) Indebtedness of a Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Oil and Gas Business Company); (C) third, within 540 45 days from after the later of the application of Net Available Cash in accordance with clauses (A) and (B) and the date of such Asset Disposition or that is one year from the receipt of such Net Available Cash, to the extent of the balance of such Net Available Cash after application and in accordance with clauses (A) and (B), to make an offer to purchase the Original 11 3/4% Notes at par plus accrued and unpaid interest, if any, thereon in accordance with the provisions of the Original 11 3/4% Notes Indenture; and (D) fourth, within 45 days of the later of the application of Net Available Cash in accordance with clauses (A), (B) and (C) thirdand the date that is one year from the receipt of such Net Available Cash, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (BC), to make an offer to purchase the Holders 14% Notes at par plus accrued and unpaid interest, if any, thereon in accordance with the provisions of the 14% Notes Indenture; and (E)fifth, within 45 days of the later of the application of Net Available Cash in accordance with clauses (A), (B), (C) and (D) and the date that is one year from the receipt of such Net Available Cash, to holders the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B), (C) and (D), to make an offer to purchase the Notes at par plus accrued and unpaid interest, if any, thereon; and (F) sixth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B), (C), (D) and (E), to (w) the investment in or acquisition of Additional Assets; (x) the making of Temporary Cash Investments, (y) the prepayment, repayment or purchase of Indebtedness of the Company or Indebtedness of any Subsidiary (other than Indebtedness owed to the Company) or (z) 51 45 any other purpose otherwise permitted under this Indenture, in each case within the later of 45 days after the application of Net Available Cash in accordance with clauses (A), (B), (C), (D) and (E) and the date that is one year from the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clauses (A), (B), (C), (D), (E) or (F) above, the Company or such Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions, the Company and its Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this covenant at any time exceed $10.0 million. The Company shall not be required to make an offer for Securities pursuant to this covenant if the Net Available Cash available therefor (after application of the proceeds as provided in clauses (A), (B), (C) and (D) is less than $10.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). For the purposes of this covenant, the following will be deemed to be cash: (x) the assumption by the transferee of Senior Indebtedness of the Company designated or Indebtedness of any Subsidiary of the Company and the release of the Company or such Subsidiary from all liability on such Senior Indebtedness or Indebtedness in connection with such Asset Disposition (in which case the Company shall, without further action, be deemed to have applied cash to repay such assumed Indebtedness in accordance with clause (A) of the preceding paragraph) and (y) securities received by the Company) to purchase Securities (and Company or any Subsidiary from the transferee that are promptly converted by the Company or such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)Subsidiary into cash.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market including as to the value to be of all non-cash consideration), as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; (2) (A) , and at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets . With respect to any Asset Disposition occurring on or after the Series A/B Issue Date from which the Company or any combination thereof (collectivelyRestricted Subsidiary receives Net Available Cash, the “Cash Consideration”Company or such Restricted Subsidiary shall (i) or (B) within 360 days after the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to date such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, received and to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Senior Indebtedness), ) to (A) apply an amount equal to such Net Available Cash to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (such Restricted Subsidiary, in each case owing to a Person other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company or an any Affiliate of the Company, or (B) within 540 days from the later of the date of such Asset Disposition invest an equal amount, or the receipt amount not so applied pursuant to clause (A), in Additional Assets (including by means of such an Investment in Additional Assets by a Restricted Subsidiary with Net Available CashCash received by the Company or another Restricted Subsidiary) and (ii) apply such excess Net Available Cash (to the extent not applied pursuant to clause (i)) as provided in the following paragraphs of this Section 4.6; provided, provided such however, that in connection with any prepayment, repayment, redemption repayment or purchase permanently retiresof Senior Indebtedness pursuant to clause (A) above, the Company or reduces such Restricted Subsidiary shall retire such Senior Indebtedness and shall cause the related loan commitment (if any) for, such Indebtedness to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed repaid or purchased; (B) second, to the extent . The amount of the balance of such Net Available Cash after application in accordance with required to be applied pursuant to clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil ii) above and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. not theretofore so applied shall constitute "Excess Proceeds." Pending application of Net Available Cash pursuant to this Section 4.07(a)provision, such Net Available Cash shall be invested in Temporary Cash Investments or Investments. If at any time the aggregate amount of Excess Proceeds not theretofore subject to an Excess Proceeds Offer (as defined below) totals at least $5 million, the Company shall, not later than 30 days after the end of the period during which the Company is required to apply such Excess Proceeds pursuant to clause (i) of the immediately preceding paragraph of this Section 4.6(a) (or, if the Company so elects, at any time within such period), make an offer (a "Series A/B Excess Proceeds Offer"), first, to purchase Series A/B Securities, if any are outstanding, in accordance with the Existing Indenture (as in effect on the Issue Date) and, second, in the event that any Excess Proceeds are not applied to temporarily reduce revolving credit a Series A/B Excess Proceeds Offer, offer to purchase from the Holders on a pro rata basis an aggregate principal amount of Securities equal to any remaining Excess Proceeds (rounded down to the nearest multiple of $1,000) on such date, at a purchase price equal to 100% of the principal amount of such Securities, plus, in each case, accrued interest (if any) to the date of purchase (the "Excess Proceeds Payment"). Upon completion of an Excess Proceeds Offer the amount of Excess Proceeds remaining after application pursuant to such Excess Proceeds Offer, (including payment of the purchase price for Securities duly tendered) may be used by the Company for any corporate purpose (to the extent not otherwise prohibited by the Indenture). For the purposes of this Section 4.6, the following are deemed to be cash or cash equivalents: (x) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition, and (which may include Priority Lien Debt)y) securities received by the Company or any Restricted Subsidiary from the transferee that are immediately converted by the Company or such Restricted Subsidiary into cash.
Appears in 1 contract
Samples: Oxford Automotive Inc
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; (2) (A) Disposition and at least 7590% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3ii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any IndebtednessDebt), to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company Debt or any Subsidiary Guarantor or Indebtedness Debt (other than Disqualified any Redeemable Stock) of a Wholly-Wholly Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness Debt owed to the Company or an Affiliate of the Company) within 540 60 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), at the Company's election to the extent investment by the Company electsor any Restricted Subsidiary in assets to replace the assets that were the subject of such Asset Disposition or in assets that, to acquire Additional Assets or to make capital expenditures as determined by the Board of Directors and evidenced by resolutions of the Board of Directors, will be used in the Oil businesses of the Company and Gas Business its Restricted Subsidiaries existing on the Issue Date or in businesses reasonably related thereto, in all cases within 540 270 days from after the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent the Company is entitled pursuant to then existing contractual limitations to receive dividends and distributions from the relevant Restricted Subsidiary and to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which Indenture to the Holders (and to holders of other Debt designated by the Company that is pari passu with the Securities) to purchase permanently reduces the outstanding amount of such Securities (and such other Senior IndebtednessDebt) at a purchase price of 100% of the principal amount thereof (without premium) plus accrued and unpaid interest (or in respect of such other Debt such lesser price, if any, as may be provided for by the terms of such other Debt); and (D) fourth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C), to the prepayment, repayment or purchase of Debt (other than any Redeemable Stock) of the Company (other than Debt owed to an Affiliate of the Company) or Debt of any Restricted Subsidiary (other than Debt owed to the Company or an Affiliate of the Company), in each case within 360 days after the later of the receipt of such Net Available Cash and the date the offer described in clause (C) is consummated; provided, however, that, in connection with any prepayment, repayment or purchase of Debt pursuant to clause (A), (C) or (D) above, the Company or such Restricted Subsidiary shall retire such Debt and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 4.06, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this Section 4.06 exceeds $5,000,000. The Company shall not permit any Non-Recourse Subsidiary to make any Asset Disposition unless such Non-Recourse Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value of the shares or assets so disposed of. Pending application of Net Available Cash pursuant to this Section 4.07(a)4.06, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)Permitted Investments.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit either of the Issuers or any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company Company, the Issuers or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Company's Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 7580% of the consideration thereof received by the Company Company, the Issuers or such Restricted Subsidiary is in the form of cash or cash equivalentsCash Equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) applied: (A) first, to if at the extent time of the Asset Disposition the Company elects (or is required has not yet achieved Profitable Operations, pro rata to a mandatory offer by the terms of any Indebtedness), Issuers and the Company to prepay, repay, redeem or purchase Senior Indebtedness Securities at 101% of the Company or any Subsidiary Guarantor or Indebtedness Accreted Value thereof on the date of purchase, plus accrued and unpaid interest and Additional Amounts, if any, thereon, and the repayment of principal and accrued and unpaid interest, if any, under the Bank Credit Facility and (other than Disqualified StockB) if at the time of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Asset Disposition the Company or an Affiliate of has achieved Profitable Operations, at the Company's option either to (1) the investment in or acquisition of Additional Assets within 540 365 days from the later of the date of such Asset Disposition or and the receipt of such Net Available CashCash or (2) pro rata to a mandatory offer by the Issuers and the Company to purchase Securities at 101% of the Accreted Value thereof on the date of purchase plus accrued and unpaid interest and Additional Amounts, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any, thereon, and the repayment of principal and accrued and unpaid interest, if any, under the Bank Credit Facility; provided that the Issuers and the Company shall be required to purchase Indebtedness pursuant to clause (2) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (1). The Issuers shall not be required to make an offer to purchase Securities pursuant to this covenant if the Net Available Cash available therefor (after application of the proceeds as provided in clause (A)) is less than U.S.$10 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Notwithstanding the foregoing provisions, Net Available Cash shall not be required to be applied in accordance herewith to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this covenant at any time does not exceed U.S.$10 million. Notwithstanding the foregoing, to the extent the Company electsSenior Note Indenture and the Senior Subordinated Note Indenture limits the repurchase of Securities, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), Issuers shall not be required to make an offer hereunder for the repurchase of Securities. For the purposes of this Section 4.06, the following will be deemed to be cash: (x) the Holders (and to holders assumption by transferee of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company, the Issuers or any Restricted Subsidiary and the release of the Company, the Issuers or any Restricted Subsidiary from all liability on such Senior Indebtedness in connection with such Asset Disposition and (y) pursuant to and subject to securities received by the conditions contained in this IndentureCompany, which purchase permanently reduces the outstanding amount of such Securities Issuers or any Restricted Subsidiary from the transferee that are promptly (and in any event within 60 days) converted by the Company, the Issuers or such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)Restricted Subsidiary into cash.
Appears in 1 contract
Samples: NSM Steel Co LTD
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), Fair Market Value of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash; provided that the following shall be deemed to be cash for purposes of this clause (ii) (but not for purposes of the definition of Net Available Cash): (1) the amount of any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes or the Guarantees) that are assumed by the transferee of any such assets, (2) the amount of any securities received by the Company or such Restricted Subsidiary from such transferee that are converted or scheduled to be converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received or scheduled to be received) within 90 days following the closing of such Asset Disposition, (3) the Fair Market Value of any Related Assets received by the Company or such Restricted Subsidiary in such Asset Disposition and (4) any Designated Noncash Consideration received by the Company or such Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (4) that has not been converted into cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not to exceed in the aggregate 10% of ACNTA Consolidated Net Tangible Assets as of the end of the most recent fiscal quarter for which financial statements are publicly available at the time such Designated Noncash Consideration is received (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the applicable Asset Disposition (after time received and without giving effect to such Asset Dispositionsubsequent changes in value); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).and
Appears in 1 contract
Samples: Indenture (Maxxim Medical Inc/Tx)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate any Asset As-set Disposition unless unless: (1) the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration (in-cluding 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 in advance on the date of contractually agreeing to such Asset Disposition as determined in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), Issuer) of the equity shares and assets subject to such Asset DispositionDisposition (including, for the avoidance of doubt, if such Asset Disposi-tion is a Permitted Asset Swap); (2) in any such Asset Disposition or series of related Asset Dispositions (Aexcept to the extent the Asset Disposition is a Permitted Asset Swap) if the property or assets sold or otherwise disposed of have a fair market value in excess of $40.0 million, at least 75% of the consideration from such Asset Dis-position, together with all other Asset Dispositions since the Escrow Release Date (on a cumulative basis), (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contin-gent or otherwise), received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and (3) the Issuer or any of its Restricted Subsidiaries, at its respective option, will apply an amount equal to such Net Available Cash from any Asset Disposition: (i) (A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior any Indebtedness of the Company or any Subsidiary a Non-Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not secured by a Subsidiary Guarantor Lien (in each case, other than Indebtedness owed to the Company Issuer or an Affiliate of any Restricted Subsidiary) or Indebtedness under the CompanyCredit Agreement (or any Refinancing In-debtedness in respect thereof) within 540 days from the later of (1) the date of such Asset Disposition or Disposi-tion and (2) the receipt of such Net Available Cash; provided, provided such however, that, in connection with any prepayment, repayment, redemption or purchase permanently retiresof Indebtedness pursuant to this clause (i), the Issuer or reduces Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment com-mitment (if any) for, such Indebtedness to be reduced in an amount equal to the principal amount so prepaid, repaid, redeemed re-deemed or purchased; or (B) secondto prepay, to the extent of the balance of such Net Available Cash after application in accordance with clause (A)repay, redeem or purchase Pari Passu Indebtedness; pro-vided, further, that, to the extent the Company electsIssuer or any Restricted Subsidiary prepays, repays, redeems or purchases Pari Passu Indebtedness pursuant to acquire this clause (B), the Issuer shall equally and rata-xxx reduce Obligations under the Notes as provided under Section 5.7, through open-market pur-chases (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 below for an Asset Disposition 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 purchased to, but excluding, the date of purchase; and/or (ii) to invest in or commit to invest in Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days from the later of (A) the date of such Asset Disposition or and (B) the receipt of such Net Available Cash; and (C) thirdprovided, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B)however, to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending that a binding agreement shall be treated as a permitted application of Net Available Cash pursuant to this Section 4.07(a), from the date of such commitment with the good faith expectation that such Net Available Cash shall will be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness satisfy such commitment within 180 days of such commitment (which may include Priority Lien Debt).an “Acceptable Commitment”) and, in the event that any Acceptable Commitment is later can--78-
Appears in 1 contract
Samples: Diversey Holdings, Ltd.
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer the Company's senior management or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); equivalents and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company or any Restricted Subsidiary elects (or is required by the terms of any Senior Indebtedness), to prepay, repay, redeem repay or purchase (x) Senior Indebtedness of the Company or any Subsidiary Guarantor or (y) Indebtedness (other than Disqualified Preferred Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 180 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, within one year from the receipt of such Net Available Cash, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), at the Company's election either (x) to the extent the Company elects, to acquire investment in or acquisition of Additional Assets or (y) to make capital expenditures prepay, repay or purchase (1) Senior Indebtedness or (2) Indebtedness (other than Preferred Stock) of a Wholly-Owned Subsidiary (in each case other than Indebtedness owed to the Oil Company); and Gas Business (C) third, within 540 45 days from after the later of the application of Net Available Cash in accordance with clauses (A) and (B) and the date of such Asset Disposition or that is one year from the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to purchase Notes, pro rata at 100% of the Holders tendered Accreted Value thereof plus accrued and unpaid interest, if any, thereon to the date of purchase. The balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) may be used by the Company in any manner not otherwise prohibited under this Indenture. Notwithstanding anything herein to holders the contrary, in connection with any prepayment, repayment or purchase of other Indebtedness pursuant to clause (A), (B) or (C) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions, the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this Section 4.10 at any time exceed $15 million. The Company shall not be required to make an offer for Notes pursuant to this Section 4.10 if the Net Available Cash available therefor (after application of the proceeds as provided in clauses (A) and (B)) is less than $25 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). For the purposes of this Section 4.10, the following will be deemed to be cash: (x) the assumption by the transferee of Senior Indebtedness of the Company designated or Indebtedness of any Restricted Subsidiary of the Company and the release of the Company or such Restricted Subsidiary from all liability on such Senior Indebtedness or Indebtedness in connection with such Asset Disposition (in which case the Company shall, without further action, be deemed to have applied such assumed Indebtedness in accordance with clause (A) of the preceding paragraph) and (y) securities received by the Company) to purchase Securities (and such other Senior Indebtedness Company or any Restricted Subsidiary of the CompanyCompany from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash. Notwithstanding the foregoing, the Company and its Restricted Subsidiaries shall be permitted to consummate an Asset Swap if (i) pursuant immediately after giving effect to such Asset Swap, no Default or Event of Default shall have occurred or be continuing, (ii) in the event such Asset Swap involves an aggregate amount in excess of $10 million, the terms of such Asset Swap have been approved by a majority of the members of the Board of Directors, and subject (iii) in the event such Asset Swap involves an aggregate amount in excess of $50 million, the Company has received a written opinion from an independent investment banking firm of nationally recognized standing that such Asset Swap is fair to the conditions contained in this IndentureCompany or such Restricted Subsidiary, which purchase permanently reduces as the outstanding amount case may be, from a financial point of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)view.
Appears in 1 contract
Samples: Viasystems Group Inc
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, to consummate any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market including as to the value to be of all noncash consideration), as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; , and (2) (Aii) at least 75% (or 100% in the case of lease payments) of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, . In the “event and to the extent that the aggregate Net Available Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its or any Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Subsidiary from one or more Asset Disposition occurring on or after the Issue Date exceeds $5 million, then the Company or such Restricted Subsidiary shall (A) within 360 days after giving effect to the receipt of such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, and to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Senior Indebtedness), ) to (1) apply an amount equal to such excess Net Available Cash to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or such Restricted Subsidiary, in each case owing to a Person other than the Company or any Subsidiary Guarantor Affiliate of the Company or Indebtedness (2) invest (or enter into a binding commitment to invest, provided that such commitment shall be subject only to customary -------- conditions (other than Disqualified Stockfinancing) and such investment shall be consummated within 360 days after the end of such 360-day period) an equal amount, or the amount not so applied pursuant to clause (1), in Additional Assets (including by means of an Investment in Additional Assets by a Wholly-Owned Restricted Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to with Net Available Cash received by the Company or an Affiliate of the Companyanother Restricted Subsidiary) within 540 days from the later of the date of and (B) apply such Asset Disposition or the receipt of such excess Net Available CashCash (to the extent not applied pursuant to clause (A)), provided such to make an Offer (as defined below) to purchase Securities pursuant to and subject to the conditions of Section 4.06(b); provided, however that in connection with any prepayment, repayment, redemption -------- ------- repayment or purchase permanently retiresof Senior Indebtedness pursuant to clause (A) above, the Company or reduces such Restricted Subsidiary shall retire such Senior Indebtedness and shall cause the related loan commitment (if any) for, such Indebtedness to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed repaid or purchased; . The amount of such excess Net Available Cash required to be applied pursuant to clause (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil above and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchasednot theretofore so applied shall constitute "Excess Proceeds". Pending application of Net Available Cash pursuant to this Section 4.07(a)covenant, such Net Available Cash shall be invested in Temporary Cash Investments Investments. For the purposes of this Section 4.06(a)(ii), the following are deemed to be cash: (x) the assumption of Senior Indebtedness of the Company or applied to temporarily reduce revolving credit any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (which may include Priority Lien Debt)y) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
Appears in 1 contract
Samples: Indenture (Glenoit Asset Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company Issuer shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company Issuer or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 75% of the consideration thereof received by the Company Issuer or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); Equivalents and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company Issuer (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company Issuer or any Restricted Subsidiary, as the case may ----- be, elects (or is required by the terms of any Senior Indebtedness), to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified any Preferred Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company Issuer or an Affiliate of the CompanyIssuer) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 180 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (B) second, to the extent of the balance of such Net Available Cash after ------ application in accordance with clause (A), at the Issuer's election to the investment in Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; (C) third, to ----- the extent of the balance of such Net Available Cash after application and in accordance with clauses (A) and (B), to make an offer to purchase Senior Subordinated Notes and other pari passu debt obligations subject to a similar covenant at par plus accrued and unpaid interest, if any, thereon; (D) fourth, ------ to the extent of the balance of such Net Available Cash after application and in accordance with clauses (A), (B) and (C), to make an offer to purchase the Capital Discount Notes and other pari passu debt obligations subject to a similar covenant at par plus accrued and unpaid interest, if any, thereon; (E) fifth, to the extent of the balance of such Net Available Cash after application and in accordance with clauses (A), (B), (C) and (D) to make an offer to purchase (an "Offer") the New Discount Notes at a price in cash equal to, prior to June 30, 2003, 100% of the Accreted Value thereof on the purchase date and, thereafter, 100% of the Accreted Value thereof plus accrued and unpaid interest to the purchase date; and (F) sixth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and ), (B), to make an offer to the Holders (C), (D) and to holders of (E) for other Senior Indebtedness of the Company designated general corporate purposes not prohibited by the CompanyIndenture; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) above, the Issuer or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase be permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Pending application of Notwithstanding the foregoing provisions, the Issuer and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this covenant exceed $5 million. the Issuer shall not be required to make an Offer for the New Discount Notes pursuant to this Section 4.07(a), such covenant if the Net Available Cash available therefor (after application of the proceeds as provided in clauses (A), (B), (C)and (D)) are less than $5 million for any particular Asset Disposition (which lesser amounts shall be invested in Temporary carried forward for purposes of determining whether an Offer is required with respect to the Net Available Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debtfrom any subsequent Asset Disposition).
Appears in 1 contract
Samples: Ddi Corp
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless unless: (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market Fair Market Value (including as to the value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), all non-cash consideration) of the equity shares and assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Temporary Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition)Investments; and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) : (A) first, to the extent the Company elects elects, within 365 days of the receipt of such Net Available Cash, (i) to reduce, prepay, defease, redeem, purchase or is required by otherwise retire the terms outstanding principal amount of Permitted Indebtedness under Credit Facilities Incurred pursuant to Section 4.03(b)(1) or Section 4.03(b)(4); (ii) to reduce, prepay, defease, redeem, purchase or otherwise retire the outstanding principal amount of any Indebtedness), to prepay, repay, redeem or purchase other Senior Indebtedness of the Company or any Subsidiary Guarantor Guarantor; provided, however, that the Company shall equally and ratably reduce the principal amount of Securities outstanding, through open-market purchases or through redemption, or shall offer (in accordance with the procedures set forth below in Section 4.06(b)) to all Securityholders to purchase their Securities at 100% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including the date of redemption, in an aggregate principal amount which, if the offer were accepted, would result in such reduction; (iii) to reduce, prepay, defease, redeem, purchase or otherwise retire Indebtedness (other than Disqualified Stock) of a Wholly-Owned Restricted Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company or an Affiliate of the Company; (iv) within 540 days from the later to acquire or invest in Additional Assets or make any other capital expenditures in respect of a Related Business or to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Related Business; or (v) any combination of the date of such Asset Disposition or the receipt of such Net Available Cashforegoing; provided, provided such however, that in connection with any prepayment, repayment, redemption repayment or purchase permanently retiresof revolving Indebtedness pursuant to clauses (i), (ii) or reduces (iii) above, the Company or such Restricted Subsidiary shall cause the related loan commitment (if any) for, such Indebtedness to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed repaid or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).
Appears in 1 contract
Samples: Supplemental Indenture (ARKO Corp.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company Holdings shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company Holdings or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 75% of the consideration thereof received by the Company Holdings or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); Equivalents and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company Holdings (or such Restricted Subsidiary, as the case may be) (A) first, to the extent Holdings or any Restricted Subsidiary, as the Company case may be, elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company Holdings or an Affiliate of the CompanyHoldings) within 540 180 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), at Holdings' election to the extent the Company elects, to acquire investment in Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application and in accordance with clauses (A) and (B), to make an offer to purchase the Senior Subordinated Notes at par plus accrued and unpaid interest, if any, thereon; and (D) fourth, to make an offer to purchase (an "Offer") the Securities at a price in cash equal to, prior to February 15, 2003, 100% of the Accreted Value thereof on the purchase date and, thereafter, 100% of the Accreted Value thereof plus accrued and unpaid interest to the purchase date, and other pari passu debt obligations subject to a similar covenant (collectively, the "pari passu debt obligations") at par plus accrued and unpaid interest to the purchase date; and (E) fifth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and ), (B), (C) and (D) for other general corporate purposes not prohibited by this Indenture; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to make an offer to clause (A) above, Holdings or such Restricted Subsidiary shall retire such Indebtedness and shall cause the Holders related loan commitment (and to holders of other Senior Indebtedness of the Company designated by the Companyif any) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase be permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Pending application of Notwithstanding the foregoing provisions, Holdings and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this covenant exceed $500,000. Holdings shall not be required to make an Offer for the Securities and for the pari passu debt obligations pursuant to this Section 4.07(a), such covenant if the Net Available Cash available therefor (after application of the proceeds as provided in clauses (A), (B) and (C)) are less than $5 million for any particular Asset Disposition (which lesser amounts shall be invested in Temporary carried forward for purposes of determining whether an Offer is required with respect to the Net Available Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debtfrom any subsequent Asset Disposition).. 50 44
Appears in 1 contract
Samples: NBC Acquisition Corp
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless: (1) the Company or such Restricted Subsidiary 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 in advance on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision)Company, of the equity shares and assets subject to such Asset DispositionDisposition (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 (Aexcept to the extent the Asset Disposition is a Permitted Asset Swap) with a purchase price in excess of the greater of $375.0 million and 15.0% of LTM EBITDA, if after giving pro forma effect to such Asset Disposition, the Consolidated First Lien Secured Leverage Ratio is greater than 3.50 to 1.00 (or such ratio would not be higher than it was immediately prior to such Asset Disposition), 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 is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and (3) within 540 days from the later of (A) firstthe date of such Asset Disposition and (B) the receipt of the Net Available Cash from such Asset Disposition (as may be extended by an Acceptable Commitment or a Second Commitment as set forth below, the “Proceeds Application Period”), an amount equal to the Applicable Percentage of such Net Available Cash (the “Applicable Proceeds”) is applied, to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness): (i) (A) to reduce, prepay, repay or purchase any Secured Indebtedness, including Indebtedness under the Credit Agreement (or any Refinancing Indebtedness in respect thereof), (B) to reduce, prepay, repay, redeem repay or purchase Senior Pari Passu Indebtedness, (C) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to redeem Notes as described under Section 5.7 hereof, or purchase Notes through open-market purchases or in privately negotiated transactions, or (D) to reduce, prepay, repay or purchase any Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a WhollyNon-Owned Subsidiary that is not a Subsidiary Guarantor (in each case, other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cashany Restricted Subsidiary); provided, provided such however, that, in connection with any reduction, prepayment, repayment, redemption repayment or purchase permanently retiresof Indebtedness pursuant to this clause (i), the Company or reduces such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) for, such Indebtedness other than obligations in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent respect of the balance of such Net Available Cash after application in accordance with clause (A), any asset-based credit facility to the extent the Company elects, to acquire Additional Assets assets sold or to make capital expenditures otherwise disposed of in the Oil and Gas Business within 540 days from the later of the date of connection with such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).Asset
Appears in 1 contract
Samples: Restaurant Brands International Limited Partnership
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company Holdings shall not, and shall not permit the Company or any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) Holdings, the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market Fair Market Value (including as to the value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), all non-cash consideration) of the equity shares and assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration thereof received by Holdings, the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Temporary Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition)Investments; and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by Holdings (or the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms Holdings elects, within 365 days of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment(i) to reduce the outstanding principal amount of Permitted Indebtedness Incurred pursuant to Section 4.03(b)(1); (ii) to reduce the outstanding principal amount of any other Senior Indebtedness of Holdings, repaymentthe Company or any Subsidiary Guarantor; provided, redemption or purchase permanently retireshowever, or reduces that the related loan commitment (if any) for, such Indebtedness in an amount equal to Company shall equally and ratably reduce the principal amount so prepaidof Securities outstanding, repaidthrough open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or through redemption, redeemed or purchasedshall offer (in accordance with the procedures set forth below in Section 4.06(b)) to all Holders to purchase their Securities at 100% of the principal amount thereof, plus accrued but unpaid interest, if any, in an aggregate principal amount which, if the offer were accepted, would result in such reduction; or (iii) to reduce Indebtedness of a Restricted Subsidiary that is not a Guarantor; in each case other than Indebtedness owed to Holdings or an Affiliate of Holdings; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company Holdings elects, to acquire Additional Assets or to make any other capital expenditures in the Oil and Gas respect of a Related Business within 540 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders of the Securities (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture; provided, which however, that in connection with any prepayment, repayment or purchase permanently reduces of Indebtedness pursuant to clause (A) or (C) above, Holdings, the outstanding amount of Company or such Securities Restricted Subsidiary shall cause the related loan commitment (and such other Senior Indebtednessif any) to be reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. The requirement of Section 4.06(a)(3)(B) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by Holdings, the Company or any of its Restricted Subsidiaries within the time period specified in Section 4.06(a)(3)(A) and such Net Available Cash is subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Notwithstanding the foregoing provisions of this Section 4.06, Holdings, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 4.06 except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06 exceeds $20,000,000. Pending application of Net Available Cash pursuant to this Section 4.07(a)4.06, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness. For the purposes of Section 4.06(a)(2), the following are deemed to be cash or Temporary Cash Investments: (i) the assumption or discharge of Indebtedness of Holdings (which may include Priority Lien Debtother than obligations in respect of Disqualified Stock of Holdings), the Company or any Restricted Subsidiary (other than obligations in respect of Disqualified Stock or Preferred Stock of the Company or a Restricted Subsidiary that is a Subsidiary Guarantor) and the release of Holdings, the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition; (ii) any securities received by Holdings, the Company or any Restricted Subsidiary from the transferee that are converted by Holdings, the Company or such Restricted Subsidiary into cash within ninety (90) days after such Asset Disposition, to the extent of the cash received in that conversion; and (iii) any Designated Non-cash Consideration received by Holdings, the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (3) that is at that time outstanding, not to exceed the greater of (1) $65,000,000 and (2) 4% of Consolidated Net Tangible Assets of Holdings, the Company and the Restricted Subsidiaries at the time of the receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
Appears in 1 contract
Samples: Indenture (Murphy USA Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be as determined in advance in good faith by an Officer or an officer senior management of the Company or, if the fair market value of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition assets exceeds $50.0 million500,000, by the Company's Board of Directors, which determination shall be conclusive evidence ) (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 7580% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalentsCash Equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) distribution agreements with radio stations or (B) the fair market value cable television operators or other video distributors which would receive programming of all forms of consideration other than Cash Consideration received by the Company and or its Restricted Subsidiaries since September 30, 2017 does not exceed in according to the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); Company's historical practice and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) ): (A) first, to the extent the Company or any Restricted Subsidiary elects (or is required by the terms of any Senior Indebtedness), (x) to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor its Restricted Subsidiaries or Indebtedness (other than Disqualified Stocky) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company investment in or an Affiliate acquisition of the Company) Additional Assets within 540 180 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, within 180 days from the receipt of such Net Available Cash, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company electsmake an offer to purchase Securities (C) third, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 180 days from after the later of the application of Net Available Cash in accordance with clauses (A) and (B) and the date of such Asset Disposition or that is one year from the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to prepay, repay or repurchase Indebtedness (other than Preferred Stock) of a Wholly-Owned Subsidiary (in each case other than Indebtedness owed to the Company or another Wholly-Owned Subsidiary); and (D) fourth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C), to (w) the investment in or acquisition of Additional Assets, (x) the making of Temporary Cash Investments, (y) the prepayment, repayment or purchase of Indebtedness of the Company (other than Indebtedness owing to any Subsidiary of the Company) or Indebtedness of any Subsidiary (other than Indebtedness owed to the Company or any of its Restricted Subsidiaries) or (z) any other purpose otherwise permitted under the Indenture, in each case within the later of 45 days after the application of Net Available Cash in accordance with clauses (A), (B) and (C) or the date that is one year from the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A), (B), (C) or (D) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; provided, however, that the foregoing shall not be deemed to require any reduction in the commitment for Bank Indebtedness to less than $20 million. Notwithstanding the foregoing provisions, the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions which has not been applied in accordance with this covenant at any time exceeds $5 million. The Company shall not be required to make an offer for Securities pursuant to this covenant if the Net Available Cash available therefor (after application of the proceeds as provided in clause (a)(iii)(A)) is less than $5 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an offer is required with respect to the Holders Net Available Cash from any subsequent Asset Disposition). For the purposes of this covenant, the following will be deemed to be cash: (and to holders x) the assumption by the transferee of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other or Senior Indebtedness of any Restricted Subsidiary of the CompanyCompany and the release of the Company or such Restricted Subsidiary from all liability on such Senior Indebtedness or Senior Indebtedness in connection with such Asset Disposition (in which case the Company shall, without further action, be deemed to have applied such paid Senior Indebtedness in accordance with clause (a)(iii)(A)) pursuant to and subject to (y) securities received by the conditions contained in this Indenture, which purchase permanently reduces Company or any Restricted Subsidiary of the outstanding amount of such Securities Company from the transferee that are promptly (and in any event within 60 days) converted by the Company or such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)Restricted Subsidiary into cash.
Appears in 1 contract
Samples: Mediaamerica Inc
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless of any assets that do not constitute ABL Priority Collateral (“Non-ABL Priority Collateral”) unless: (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market Fair Market Value (including as to the value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), all non-cash consideration) of the equity shares and other assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalentsTemporary Cash Investments; (3) without limitation of the provisions described under Section 4.15, Additional Assets or to the extent that any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its or any Restricted Subsidiaries since September 30Subsidiary from such Asset Disposition consists of assets that constitute Notes Priority Collateral, 2017 does not exceed such assets, including any such assets of any Person that becomes a Subsidiary Guarantor as a result of such transaction, are concurrently with their acquisition added to the Notes Priority Collateral; (4) the Net Available Cash from any such Asset Disposition of Notes Priority Collateral is either (i) paid directly by the purchaser thereof to the Noteholder Collateral Agent to be held in trust in the aggregate 10% of ACNTA at Asset Sale Proceeds Account or (ii) deposited to the time of the applicable Asset Disposition Sale Proceeds Account within five Business Days after receipt thereof, in each case, for application in accordance with this Section 4.06; (after giving effect to such Asset Disposition); and (35) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms within 365 days of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash: (A) to make one or more offers to the Holders (and, provided at the option of the Company, the holders of Other Pari Passu Lien Obligations) to purchase Securities (and such Other Pari Passu Lien Obligations) pursuant to and subject to the conditions contained in this Indenture (each, an “Asset Disposition Offer”); provided, however, that in connection with any prepayment, repayment, redemption repayment or purchase of Indebtedness pursuant to this clause (A), the Company or such Restricted Subsidiary shall permanently retires, or reduces retire such Indebtedness and shall cause the related loan commitment (if any) for, such Indebtedness to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed repaid or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).provided further that if the
Appears in 1 contract
Samples: Us Concrete Inc
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) either (x) in the case of any Asset Disposition, the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value value, as may be determined (such and shall be determined, to the extent an Asset Disposition involves a fair market value to be determined in advance greater than $10,000,000) in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which whose determination shall will be conclusive evidence and evidenced by a resolution of compliance with this provisionthe Board of Directors (including as to the value of all non-cash consideration), of the equity shares and assets subject to such Asset Disposition; , or (2y) in the case of a Financing Disposition, the Board of Directors shall have determined in good faith, which determination will be conclusive and evidenced by a resolution of the Board of Directors, that such Financing Disposition is economically fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and in the best interest of the Company or such Restricted Subsidiary and its respective creditors, (Aii) in the case of any Asset Disposition having a fair market value of $10,000,000 or more, at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof Cash Equivalents (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable with respect to an Asset Disposition (after giving effect to such Asset Dispositionconsisting of an exchange of equipment for use in related lines of business, a Financing Disposition or a Fiskeby Transaction); , and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition (other than any Financing Disposition relating to any Receivables Financing) is applied by the Company (or such Restricted Subsidiary, as the case may be) as follows: (A) first, to the extent the Company elects (or is required by the terms of any IndebtednessSenior Indebtedness (other than the Securities) or Indebtedness (other than Preferred Stock) of a Restricted Subsidiary), to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stockthe Securities) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor or such Indebtedness (in each case other than Indebtedness owed to the Company or an Affiliate of the Companya Restricted Subsidiary) within 540 365 days from the later of the date of such after an Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchasedDisposition; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company or such Restricted Subsidiary elects, to acquire reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or to make capital expenditures another Restricted Subsidiary) within 365 days after an Asset Disposition or, if such reinvestment in Additional Assets is a project authorized by the Oil and Gas Business within 540 days from the later Board of Directors of the date Company or a Restricted Subsidiary, as the case may be, that will take longer than such 365 days to complete (an "Authorized Project"), the period of such Asset Disposition or time necessary to complete the receipt of such Net Available CashAuthorized Project; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) a Note Offer to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained of Section 4.06(b) within 365 days after an Asset Disposition or, in this Indenturethe event that the Company or a Restricted Subsidiary shall have undertaken an Authorized Project, which purchase permanently reduces the outstanding amount within 20 days after completion of such Securities Authorized Project; provided, however that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and such other Senior Indebtednessshall cause the related loan commitment (if any) to be permanently reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Pending application Notwithstanding the foregoing provisions of this Section, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash pursuant to in accordance with this Section 4.07(a), such except to the extent that the aggregate Net Available Cash shall from all Asset Dispositions which is not applied in accordance with this Section exceeds $25,000,000. For the purposes of clause (ii) of this Section 4.06(a), the following are deemed to be invested cash: (w) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in Temporary connection with such Asset Disposition, (x) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary is released from any Guarantee of such Indebtedness in connection with such Asset Disposition, (y) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash or Cash Investments Equivalents, and (z) consideration consisting of Indebtedness of the Company or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)any Restricted Subsidiary.
Appears in 1 contract
Samples: Ric Holding Inc
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) (x) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; Disposition and (2) (Ay) at least 7580% of the consideration thereof received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or cash equivalentsCash Equivalents provided, Additional Assets or however, that the requirement set forth in (i) (x) above shall not apply to any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); any governmental authority as may be required, from time to time, by governmental authority, and (3ii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any Senior Indebtedness), to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or any Indebtedness (or other than Disqualified Stock) of Obligations under the Credit Facility or, if the Asset Disposition was made by a Wholly-Owned Restricted Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company or an Affiliate Guarantor, of any Restricted Subsidiary, within 360 days of the Company) within 540 days 's or such Restricted Subsidiary's receipt of Net Available Cash from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchasedDisposition; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), at the Company's election, to the extent investment by the Company electsor any Subsidiary Guarantor or, to acquire Additional Assets or to make capital expenditures if the Asset Disposition was made by a Restricted Subsidiary that is not a Subsidiary Guarantor, any Restricted Subsidiary, in the Oil and Gas Business within 540 days from the later (1) assets of the date Company, such Subsidiary Guarantor or, if the Asset Disposition was made by a Restricted Subsidiary that is not a Subsidiary Guarantor, such Restricted Subsidiary to replace the assets (other than Indebtedness or Capital Stock) that were the subject of such Asset Disposition or (2) assets (other than (q) inventory or other current assets or (r) Indebtedness or Capital Stock) of the Company, any Subsidiary Guarantor or if the Asset Disposition was made by a Restricted Subsidiary that is not a Subsidiary Guarantor, any Restricted Subsidiary that (as determined in good faith by the Board of Directors) are related to the business of the Company and the Wholly Owned Subsidiaries existing on the Issue Date or which are used in a Related Business, in each case within 360 days from the date of the Company's or such Restricted Subsidiary's receipt of such Net Available CashCash from such Asset Disposition; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an a pro rata offer to purchase Notes at par (and, to the Holders (and to holders of extent required by the instrument governing such Indebtedness, any other Senior Subordinated Indebtedness of the Company designated by the Company, at a price no greater than par or accreted value, whichever is less) plus accrued and unpaid interest; and (D) fourth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C), in any manner that does not violate this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, the Company or such Subsidiary shall permanently retire such Indebtedness and cause the related loan commitment (if any) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase be permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this clause (a), the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with clause (a)(ii)(C) of this Section 4.17 except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with clauses (a)(ii)(A) and (B) of this Section 4.17 exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.07(aclause (a), such Net Available Cash shall be invested in Temporary Cash Investments or applied used to temporarily reduce revolving credit Senior Indebtedness or invested in Cash Equivalents. For the purposes of this Section 4.17, the following is deemed to be cash or Cash Equivalents: the express assumption of Indebtedness (other than any Indebtedness that is by its terms subordinated to the Notes) of the Company or any Restricted Subsidiary, but only to the extent that such assumption is effected on a basis under which may include Priority Lien Debt)there is no further recourse to the Company or any of the Restricted Subsidiaries with respect to such liabilities.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit Brand Services or any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company Brand Services or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market including as to the value to be of all non-cash consideration), as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors of compliance with this provision)Brand Services, of the equity shares and assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration thereof received by the Company Brand Services or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company Brand Services (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company Brand Services elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor Brand Services or Indebtedness (other than any Preferred Stock or Disqualified Stock) of a Wholly-Wholly Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company Brand Services or an Affiliate of the CompanyBrand Services) within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company Brand Services elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders holders of the 2012 Securities (and to holders of other Senior Subordinated Indebtedness of the Company Brand Services designated by the CompanyBrand Services) to purchase 2012 Securities (and such other Senior Subordinated Indebtedness of the CompanyBrand Services) pursuant to and subject to the conditions contained of Section 4.06(b); provided, however, that in this Indentureconnection with any prepayment, which repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, Brand Services or such Restricted Subsidiary shall permanently reduces retire such Indebtedness and shall cause the outstanding amount of such Securities related loan commitment (and such other Senior Indebtednessif any) to be permanently reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 4.06, Brand Services and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 4.06(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $5.0 million. Pending application of Net Available Cash pursuant to this Section 4.07(a4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of Brand Services (which may include Priority Lien Debt)other than obligations in respect of Disqualified Stock of Brand Services) or any Restricted Subsidiary (other than obligations in respect of Disqualified Stock and Preferred Stock of a Subsidiary Guarantor) and the release of Brand Services or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2) securities received by Brand Services or any Restricted Subsidiary from the transferee that are promptly converted by Brand Services or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion.
Appears in 1 contract
Samples: Indenture (Brand Services)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); Equivalents and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company or any Restricted Subsidiary, as the case may ----- be, elects (or is required by the terms of any Senior Indebtedness), to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified any Preferred Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 180 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (CB) thirdsecond, to the extent of the balance of such Net Available Cash after ------ application in accordance with clause (A), at the Company's election to the investment in Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; (C) third, to ----- the extent of the balance of such Net Available Cash after application and in accordance with clauses (A) and (B), to make an offer to purchase (an "Offer") Notes and other pari passu debt obligations subject to a similar covenant (collectively, the Holders "pari passu Notes") at par plus accrued and unpaid interest, if any, thereon; and (and D) fourth, to holders of other Senior Indebtedness the extent of the Company designated balance of such Net ------ Available Cash after application in accordance with clauses (A), (B) and (C), for other general corporate purposes not prohibited by the CompanyIndenture; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase be permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Pending application of Notwithstanding the foregoing provisions, the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this covenant exceed $5 million. The Company shall not be required to make an Offer for the Notes and for the pari passu Notes pursuant to this Section 4.07(a), such covenant if the Net Available Cash available therefor (after application of the proceeds as provided in clauses (A) and (B)) are less than $5 million for any particular Asset Disposition (which lesser amounts shall be invested in Temporary carried forward for purposes of determining whether an Offer is required with respect to the Net Available Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debtfrom any subsequent Asset Disposition).
Appears in 1 contract
Samples: Details Inc
Limitation on Sales of Assets and Subsidiary Stock. The Company and the Subsidiary Guarantors will not sell, assign, farm-out, convey or otherwise transfer any Property except for: (a) The Company shall not, the sale of Hydrocarbons in the ordinary course of business; (b) farmouts of undeveloped acreage and shall not permit any Restricted Subsidiary to, directly assignments in connection with such farmouts; (c) the sale or indirectly, consummate any Asset Disposition unless (1) transfer of equipment that is no longer necessary for the business of the Company or such Restricted the Subsidiary receives consideration Guarantors or is replaced by equipment of at least equal comparable value and use; (d) a disposition by a Subsidiary Guarantor to the fair market value (such fair market value to be determined in advance in good faith by an Officer Borrower or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity and assets subject Borrower or a Subsidiary Guarantor to such Asset Dispositiona Subsidiary Guarantor; (2e) a disposition of cash, cash equivalents or other financial assets; (Af) at least 75an issuance of Equity Interests by a Subsidiary Guarantor to the Borrower or to a Subsidiary Guarantor; (g) any casualty or condemnation event (other than a Casualty Event described in clause (i) of this Section 7.03); (h) the making of a Restricted Payment permitted by Section 7.23 or a Permitted Investment; (i) the sale or other disposition (including Casualty Events) of any Oil and Gas Property or any interest therein or any Subsidiary owning Oil and Gas Properties; provided, however that (i) 100% of the consideration received by in respect of such sale or other disposition shall be cash; (ii) the Company consideration received in respect of such sale or such Restricted Subsidiary is in the form of cash other disposition shall be equal to or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) greater than the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days from Property, interest therein or Subsidiary subject of such sale or other disposition (as reasonably determined by the later board of directors of the date Company and the Company shall deliver to the Trustee an Officers’ Certificate certifying to that effect) and (iii) if any such sale or other disposition is of a Subsidiary owning Oil and Gas Properties, such sale or other disposition shall include all the Equity Interests of such Asset Disposition or the receipt of such Net Available CashSubsidiary; and (Cj) third, sales and other dispositions of Properties not regulated by subsections (a) to the extent (i) of the balance this Section 7.26 having a fair market value not to exceed $1,000,000 during any 12-month period provided that any net cash proceeds of such Net Available Cash after application in accordance with clauses sale or disposition permitted by the foregoing clause (Ai) and or this clause (B), j) are used to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated prepayments or reinvested as required by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt3.08(a).
Appears in 1 contract
Samples: Indenture (Goodrich Petroleum Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including as to the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets Cash Equivalents or any combination thereof (collectively, Qualified Proceeds; provided that the “Cash Consideration”) or (B) the aggregate fair market value of all forms of consideration Qualified Proceeds (other than cash or Cash Consideration Equivalents) which may be received by the Company and its Restricted Subsidiaries since September 30, 2017 does in consideration for Asset Dispositions pursuant to this clause (ii) shall not exceed in $7.5 million after the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); Issue Date, and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor (other than Subordinated Obligations) or Indebtedness (other than Disqualified Stockany Preferred Stock or any Guarantor Subordinated Obligation) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), at the Company's election to the extent the Company elects, to acquire invest in Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application and in accordance with clauses (A) and (B) (the "Excess Proceeds"), to make an offer to purchase the Holders Securities and other Pari Passu Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Disposition (and to holders of other Senior Indebtedness "Pari Passu Notes") at 100% of the principal amount thereof (or 100% of the accreted value of such Pari Passu Notes so tendered if such Pari Passu Notes were issued at a discount) plus accrued and unpaid interest, if any, to the date of purchase; and (D) fourth, to the extent of the balance of the Excess Proceeds, after application in accordance with clause (C), to fund other corporate purposes not prohibited by this Indenture; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) above, the Company designated by or such Restricted Subsidiary will retire such Indebtedness and will cause the Companyrelated loan commitment (if any) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase be permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Pending the final application of any such Net Available Cash pursuant to this Section 4.07(a)Cash, the Company or its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner that is not prohibited by this Indenture. Upon completion of such Asset Sale Offer, the amount of Excess Proceeds shall be invested reset at zero. Notwithstanding the foregoing provisions, the Company and its Restricted Subsidiaries will not be required to apply any Net Available Cash in Temporary accordance herewith except to the extent that the aggregate Net Available Cash Investments or from all Asset Dispositions which have not been applied in accordance with this covenant exceed $5.0 million. For the purposes of this Section 3.6, the following will be deemed to temporarily reduce revolving credit be cash: (x) the assumption by the transferee of Indebtedness (other than Subordinated Obligations) of the Company or Indebtedness (other than Guarantor Subordinated Obligations) of any Restricted Subsidiary of the Company and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition (in which may include Priority Lien Debt)case the Company will, without further action, be deemed to have applied such assumed Indebtedness in accordance with clause (A) of the preceding paragraph) and (y) securities, notes or other obligations received by the Company or any Restricted Subsidiary of the Company from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
Appears in 1 contract
Samples: Indenture (Sather Trucking Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), Fair Market Value of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 7580% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A1) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem purchase, repurchase, redeem, retire, defease, or purchase Senior otherwise acquire for value Bank Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified obligations in respect of Preferred Stock) of a Wholly-Wholly Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the CompanyCompany and other than obligations in respect of Disqualified Stock) within 540 270 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; (2) second, to the extent of the balance of Net Available Cash after application in accordance with clause (1), to the extent the Company or such Restricted Subsidiary elects, to reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary) within 270 days from the later of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that in the case of an Asset Disposition of any Collateral or Excluded Securities, such Additional Assets (other than any assets that are specifically excluded from the Collateral pursuant to the terms of the Security Documents) are added, substantially concurrently with their acquisition, to the Collateral securing (with the same priority as the assets disposed of) the Securities and the Subsidiary Guarantees; (C3) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).of
Appears in 1 contract
Samples: Land O Lakes Inc
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary 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) at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), Fair Market Value of the equity shares and assets subject to such Asset Disposition; Disposition and (2) (Aii) at least 7580% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash cash, Temporary Cash Investments or cash equivalents, Additional Assets or any combination thereof other Qualified Proceeds (collectively, provided that the “Cash Consideration”) or aggregate Fair Market Value of Qualified Proceeds (B) the fair market value of all forms of consideration other than cash and Temporary Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does Investments) shall not exceed in $10 million since the aggregate 10% Closing Date). Within 365 days after the receipt of ACNTA at the time of the applicable Asset Disposition (after giving effect to any Net Available Cash from such Asset Disposition); and (3) , the Company or such Restricted Subsidiary may apply an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (w) to repay or such Restricted Subsidiary, as the case may be) (A) firstcash collateralize any Credit Agreement Obligations, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior repay Indebtedness of the Company or any Subsidiary Guarantor of its Restricted Subsidiaries secured by assets not in the Collateral, or to repay any Indebtedness (other than Disqualified Stock) of a Wholly-Owned any Restricted Subsidiary that is not a Subsidiary Guarantor Guarantor; (x) to acquire all or substantially all of the assets of another Permitted Business; (y) to make a capital expenditure; or (z) to acquire other than long-term assets that are used or useful in the Permitted Business; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness owed pursuant to clause (x) above, the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of Restricted Subsidiary shall retire such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces Indebtedness and shall cause the related loan commitment (if any) for, such Indebtedness to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed repaid or purchased; . For the purposes of clause (a)(ii) of this Section 4.06 only, the following are deemed to be cash: (A) the assumption of any liabilities (as shown on the Company's or a Restricted Subsidiary's most recent balance sheet) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability in connection with such Asset Disposition and (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent any securities or other obligations received by the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days any Restricted Subsidiary from the later transferee that are converted within 90 days of receipt by the date Company or such Restricted Subsidiary into cash. Pending the final application of such Asset Disposition or the receipt of such any Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and or such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to Restricted Subsidiary may temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)borrowings or otherwise invest the Net Available Cash in any manner that is not prohibited by this Indenture.
Appears in 1 contract
Samples: On Semiconductor Corp
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless: (1) in the case of any Asset Disposition involving shares or assets having a value equal to or in excess of $1.0 million, the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at least equal to the fair market value (such fair market value to be determined in advance on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; (2) (A) in the case of any Asset Disposition involving shares or assets having a value equal to or in excess of $1.0 million, at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition)Equivalents; and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may bebe (a) (A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem repay or purchase Senior secured Indebtedness of the Company or any secured Indebtedness of a Restricted Subsidiary Guarantor or Indebtedness (other than any Disqualified Stock) Stock or Guarantor Subordinated Obligations of a Wholly-Owned Restricted Subsidiary that is not a Subsidiary Guarantor (Guarantor), in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment Company (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, other than to the extent of the balance of such Net Available Cash after application in accordance Indebtedness is permitted under Sections 3.3(b)(1) , 3.3(b)(2)(solely with clause (Arespect to Guarantees under this Agreement), 3.3(b)(4)(a), 3.3(b)(4)(c)(solely with respect to the extent the Company electsSecurities), to acquire Additional Assets or to make capital expenditures in the Oil Section 3.3(b)(6), Section 3.3(b)(10) and Gas Business Section 3.3(b)(11)), within 540 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (Ba), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by or such Restricted Subsidiary will retire such Indebtedness and will cause the Companyrelated commitment (if any) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase be permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Pending ; or (b) to invest in Additional Assets within 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided that pending the final application of Net Available Cash pursuant to this Section 4.07(a), any such Net Available Cash shall be invested in Temporary Cash Investments accordance with Section 3.7(a)(3)(a) or applied to Section 3.7(a)(3)(b) above, the Company and its Restricted Subsidiaries may temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture; provided, further, that in the case of an Asset Disposition of Collateral, any cash will be deposited in the Collateral Account or otherwise in accordance with the Intercreditor Agreement.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market including as to the value to be of all non-cash consideration), as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) firstFIRST, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than any Disqualified Stock) of a Wholly-Owned Restricted Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) secondSECOND, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days one year from the later of the date 52 of such Asset Disposition or the receipt of such Net Available Cash; and (C) thirdTHIRD, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer Offer to the Holders of the Securities (and to holders of other Senior Subordinated Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness of the Company) pursuant to and subject to the conditions contained of Section 4.06(b); PROVIDED, HOWEVER, that in this Indentureconnection with any prepayment, which repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, the Company or such Restricted Subsidiary shall permanently reduces retire such Indebtedness and shall cause the outstanding amount of such Securities related loan commitment (and such other Senior Indebtednessif any) to be permanently reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 4.06(a), the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 4.06(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10 million. Pending application of Net Available Cash pursuant to this Section 4.07(a4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (which may include Priority Lien Debt)2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
Appears in 1 contract
Samples: Pathmark Stores Inc
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company Bucyrus shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1i) the Company Bucyrus or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market including as to the value to be of all non-cash consideration), as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity and assets or other property subject to such Asset Disposition; , and (2) (Aii) at least 75% of the consideration therefor received by the Company Bucyrus or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectivelyTemporary Cash Investments. For the purposes of this Section 4.13, the “Cash Consideration”following are deemed to be cash: (x) or amount of any liabilities (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% liabilities that are subordinated to any other Indebtedness of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (Bucyrus or such Restricted Subsidiary, as the case may be) of Bucyrus or such Restricted Subsidiary (Aas shown on Bucyrus' or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) firstthat are assumed by the transferee of any such assets or other property in such Asset Disposition, but only to the extent the Company elects (or that such assumption is required by the terms of any Indebtedness), effected on a basis under which there is no further recourse to prepay, repay, redeem or purchase Senior Indebtedness of the Company Bucyrus or any Restricted Subsidiary Guarantor with respect to such liabilities and (y) securities received by Bucyrus or Indebtedness (other than Disqualified Stock) of a Wholly-Owned any Restricted Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of transferee that are immediately converted by Bucyrus or such Restricted Subsidiary into cash. With respect to any Asset Disposition occurring on or after the receipt of such Issue Date from which Bucyrus or any Restricted Subsidiary receives Net Available Cash, provided Bucyrus or such prepayment, repayment, redemption or purchase permanently retires, or reduces Restricted Subsidiary may within 270 days after the related loan commitment date such Net Available Cash is received: (if anyi) for, such Indebtedness in apply an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with to permanently prepay, repay or purchase Indebtedness under the Bank Credit Facility; or (ii) invest an equal amount, or the amount not so applied pursuant to clause (Ai), to the extent the Company elects, to acquire in Additional Assets or to make capital expenditures (including by means of an Investment in the Oil and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Additional Assets by a Restricted Subsidiary with Net Available Cash after application in accordance with clauses (A) and (Breceived by Bucyrus or another Restricted Subsidiary), to make an offer to the Holders (and to holders . The amount of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) Net Available Cash not applied pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities clause (and such other Senior Indebtednessii) in an amount equal to (or greater than) the principal amount purchased. above shall constitute "Excess Proceeds." Pending application of Net Available Cash pursuant to this Section 4.07(a)provision, such Net Available Cash shall be invested in Temporary Cash Investments Investments. If at any time the aggregate amount of Excess Proceeds not theretofore subject to an Excess Proceeds Offer (as defined below) totals at least $5.0 million, Bucyrus shall, not later than 10 business days after the end of the period during which Bucyrus is required to apply such Excess Proceeds pursuant to clause (i) of the immediately preceding paragraph (or, if Bucyrus so elects, at any time within such period), make an offer (an "Excess Proceeds Offer") to purchase from the holders of Securities and Other Qualified Securities (determined on a pro rata basis according to the accreted value or applied principal amount, as the case may be, of the Securities and the Other Qualified Securities) that may be purchased out of the Excess Proceeds (rounded down to temporarily reduce revolving credit Indebtedness the nearest multiple of $1,000) on such date, at a purchase price (which x) in the case of the Securities, equal to 100% of the principal amount of such Securities, plus accrued and unpaid interest, if any, to the date of purchase and (y) in the case of each issue of Other Qualified Securities, based on the terms set forth in the indenture related to such issue. Upon completion of an Excess Proceeds Offer the amount of Excess Proceeds remaining after application pursuant to such Excess Proceeds Offer (including payment of the purchase price for Securities and Other Qualified Securities duly tendered) may include Priority Lien Debtbe used by Bucyrus for any corporate purpose (to the extent not otherwise prohibited by this Indenture).
Appears in 1 contract
Samples: Bucyrus International Inc
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless: (1) in the case of any Asset Disposition involving shares or assets having a value equal to or in excess of $1.0 million, the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at least equal to the fair market value (such fair market value to be determined in advance on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence Directors (including the value of compliance with this provisionall non-cash consideration), of the equity shares and assets subject to such Asset Disposition; (2) (A) in the case of any Asset Disposition involving shares or assets having a value equal to or in excess of $1.0 million, at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition)Equivalents; and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be: (a) (A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem repay or purchase Senior secured Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than any Disqualified StockStock or Subordinated Obligations) or secured Indebtedness of a Wholly-Owned Restricted Subsidiary (other than any Disqualified Stock or Guarantor Subordinated Obligations of a Restricted Subsidiary that is not a Subsidiary Guarantor Guarantor) (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (Ba), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by or such Restricted Subsidiary will retire such Indebtedness and will cause the Companyrelated commitment (if any) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase be permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Pending ; or (b) to invest in Additional Assets within 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided that pending the final application of Net Available Cash pursuant to this Section 4.07(a), any such Net Available Cash shall be invested in Temporary Cash Investments accordance with Section 3.7(a)(3)(a) or applied to Section 3.7(a)(3)(b) above, the Company and its Restricted Subsidiaries may temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture; provided, further, that in the case of an Asset Disposition of Collateral, any cash will be deposited in accordance with the Intercreditor Agreement.
Appears in 1 contract
Samples: Indenture (Nebraska Book Co)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be value, as determined in advance in good faith by an Officer or an officer senior management for Asset Dispositions of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds less than $50.0 million, 5 million and by the Board of Directors, which determination shall be conclusive evidence Directors of compliance with this provisionthe Company in good faith for Asset Dispositions of $5 million or more (including in each case as to the value of all non cash consideration), of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Temporary Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); Investments and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) , (A) first, within 270 days from the receipt of such Net Available Cash to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of the New Credit Facility or any Senior Indebtedness), to prepay, repay, redeem purchase or purchase otherwise acquire Indebtedness under the New Credit Facility or other Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company); (B) to the extent of any remaining balance of Net Available Cash after any election in accordance with clause (A), to the extent the Company or such Restricted Subsidiary, as the case may be, elects, to the investment by the Company or any Wholly Owned Subsidiary in Additional Assets within 360 days from the receipt of such Net Available Cash (except that the Company shall be deemed to have so invested such Net Available Cash within 360 days if, within such 360 days, it has entered into a binding commitment to invest such Net Available Cash and such Net Available Cash is not a actually invested within 90 days thereafter); (C) to the extent of any remaining balance of such Net Available Cash after any election in accordance with clauses (A) and (B), to make an Offer (as defined below) to purchase Securities pursuant to and subject to the conditions set forth in paragraph (b) of this covenant within 45 days from the application of Net Available Cash in accordance with clauses (A) and (B); and (D) to the extent of any remaining balance of such Net Available Cash after election or application in accordance with clauses (A), (B) and (C), to (x) the acquisition by the Company or any Wholly Owned Subsidiary Guarantor of Additional Assets, (y) the prepayment, repayment, purchase or other acquisition of Indebtedness of the Company (other than Indebtedness owed to an Affiliate of the Company and other than Disqualified Stock of the Company) or Indebtedness of any Restricted Subsidiary (other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash(z) general corporate purposes; provided, provided such however that in connection with any prepayment, repayment, redemption purchase or purchase permanently retiresother acquisition of Indebtedness pursuant to clause (A), (C) or reduces (D) above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause any related loan commitment or availability (if any) for, such Indebtedness to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed purchased or purchased; (B) secondacquired, to except that pending the extent final application of any such Net Available Cash, the balance of Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility or otherwise invest such Net Available Cash after application in accordance with clause Temporary Cash Investments. For the purposes of this Section 4.6, the following are deemed to be cash: (A), to x) the extent assumption by the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days from the later transferee of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated or any Restricted Subsidiary (other than Indebtedness that is subordinated to the Securities or the Subsidiary Guarantees) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition, (y) securities received by the CompanyCompany or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash and (z) to purchase Securities Additional Assets received in an exchange of assets transaction; provided that (and i) in the event such other Senior Indebtedness exchange of assets transaction or series of related exchange of assets transactions (each an "Exchange Transaction") involves an aggregate value in excess of $2,500,000, the terms of such Exchange Transaction shall have been approved by a majority of the Companydisinterested members of the Board of Directors, (ii) pursuant to and subject in the event such Exchange Transaction involves an aggregate value in excess of $5,000,000, the Company shall have received a written opinion from a nationally recognized independent investment banking firm that the Company has received consideration equal to the conditions contained in this Indenture, which purchase permanently reduces fair market value of the outstanding amount assets disposed of such Securities and (and such other Senior Indebtednessiii) in an amount equal any assets to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash be received shall be invested comparable to those being exchanged as determined in Temporary Cash Investments or applied good faith by the Board of Directors, except that up to temporarily reduce revolving credit Indebtedness (which $1,000,000 of consideration in any Exchange Transaction may include Priority Lien Debt)consist of marketing and similar credits in lieu of comparable assets.
Appears in 1 contract
Samples: Friendly Ice Cream Corp
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity shares and assets subject to such Asset Disposition; , (2) (Aii) at least 7585% (or 100% in the case of lease payments) of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalentscash, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3iii) an amount equal 62 54 to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Preferred Stock) of a Wholly-Wholly Owned Subsidiary that is not a Subsidiary Guarantor Subsidiary) to prepay, repay or purchase Senior Indebtedness or such Indebtedness (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 60 days from after the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company or such Restricted Subsidiary elects, to acquire reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or to make capital expenditures in the Oil and Gas Business another Restricted Subsidiary) within 540 270 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders Offer (and to holders of other Senior Indebtedness of the Company designated by the Companyas defined below) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained of Section 4.06(b), provided that if the Company elects (or is required by the terms of any Senior Subordinated Indebtedness), such Offer may be made ratably to purchase the Securities and other Senior Subordinated Indebtedness, and (D) fourth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C), to prepay, repay or purchase Indebtedness of the Company (other than Indebtedness owed to an Affiliate of the Company and other than Disqualified Stock of the Company) or Indebtedness of any Restricted Subsidiary (other than Indebtedness owed to the Company or an Affiliate of the Company), in each case described in this Indenture, which purchase permanently reduces clause (D) within one year from the outstanding amount receipt of such Securities Net Available Cash or, if the Company has made an Offer pursuant to clause (C) of this Section 4.06(a), six months from the date such Offer is consummated; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A), (C) or (D) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and such other Senior Indebtednessshall cause the related loan commitment (if any) to be permanently reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Pending application Notwithstanding the foregoing provisions of this Section 4.06, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash pursuant to in accordance with this Section 4.07(a), such 4.06 except to the extent that the aggregate Net Available Cash shall from all Asset Dispositions 63 55 in any year that is not applied in accordance with this Section 4.06 exceeds $5.0 million. For the purposes of this Section 4.06, the following are deemed to be invested cash: (x) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in Temporary Cash Investments connection with such Asset Disposition and (y) securities received by the Company or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
Appears in 1 contract
Samples: Richmont Marketing Specialists Inc
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company and the Guarantors shall not, and shall not permit any Restricted Subsidiary of their Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, consummate any Asset Disposition unless of its property, business or assets, including by merger or consolidation (1) in the case of a Subsidiary of the Company), and including any sale or other transfer or issuance of any Equity Interests of any Subsidiary of the Company, whether by the Company or a Subsidiary of the Company, and including any sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless (l)(a) within 365 days after the date of such Restricted Subsidiary receives consideration at least equal Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Offer Amount") are applied to the fair market value optional redemption of the Securities in accordance with the terms of this Indenture and other Indebtedness of the Company ranking on a parity with the Securities from time to time outstanding with similar provisions requiring the Company to make an offer to purchase or to redeem such Indebtedness with the proceeds for asset sales, pro rata in proportion to the respective principal amounts (or accreted values in the case of Indebtedness issued with an original issue discount) of the Securities and such fair market value other Indebtedness then outstanding or to be determined the repurchase of the Securities and such other Indebtedness pursuant to an irrevocable, unconditional cash offer (pro rata in advance proportion to the respective principal amounts (or accreted values in the case of Indebtedness issued with an original issue discount) of the Securities and such other Indebtedness then outstanding) (the "Asset Sale Offer") to repurchase such Indebtedness at a purchase price of 100% of principal amount (or accreted amount in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price"), together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment, made within 335 days of such Asset Sale, or (b) within 365 days following such Asset Sale, the Asset Sale Offer Amount is (i) used (x) to make one or more Acquisitions, (y) to make capital expenditures or (z) to acquire other tangible assets, in each case which in the good faith by an Officer or an officer reasonable judgment of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of DirectorsDirectors of the Company shall immediately constitute or be a part of a Related Business of the Company or a Subsidiary Guarantor (or, which determination shall be conclusive evidence if such Asset Sale is by a Foreign Subsidiary, such Foreign Subsidiary) immediately following such transaction or (ii) used to retire permanently Senior Debt (including that in the case of compliance with this provisiona revolver or similar arrangement that makes credit available, such commitment is so permanently reduced by such amount), of the equity and assets subject to or, if such Asset Disposition; Sale is by a Foreign Subsidiary, Indebtedness of Foreign Subsidiaries or (c) any combination permitted by the foregoing clauses (a) and (b), (2) (A) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents, provided that (A) the amount of any liabilities (as shown on the Company's or such Subsidiary's most recent balance sheet) of the Company or any such Subsidiary (other than Subordinated Indebtedness) that are assumed by the transferee of any such assets (provided that the Company and its Subsidiaries are released from all obligations in respect thereof) shall be deemed to be cash for purposes of this provision, (B) any notes or other obligations received by the Company or such Restricted a Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company transferee in exchange for any such assets that are promptly converted into cash (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects of cash received) shall be deemed to be cash for purposes of this provision, and (C) in connection with any Asset Sale or is required by the terms series of related Asset Sales involving exclusively assets and property (including Equity Interests of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from comprising the later Company's business described under "Business--Products--Sporting Goods and Other Products" in the Offering Memorandum, the total consideration for any such Asset Sale that does not consist of cash or Cash Equivalents may be up to the lesser of (x) 50% of the date total consideration of such Asset Disposition Sale or (y) $5,000,000, (3) no Event of Default shall have occurred and be continuing at the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retirestime of, or reduces the related loan commitment (if any) forwould occur after giving effect, on a pro forma basis, to, such Indebtedness Asset Sale, unless such Asset Sale is in an amount equal consideration solely of cash or Cash Equivalents and such consideration is applied immediately to the permanent reduction of the principal amount so prepaid, repaid, redeemed or purchased; (B) second, of Indebtedness outstanding pursuant to the extent of the balance of such Net Available Cash after application in accordance with clause (A)New Credit Facility, to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C4) third, to the extent Board of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness Directors of the Company designated by determines in good faith that the Company) to purchase Securities (and Company or such other Senior Indebtedness Subsidiary, as applicable, receives fair market value for such Asset Sale. Notwithstanding the foregoing provisions of the Company) pursuant to and subject to prior paragraph, the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash following transactions shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).not constitute Asset Sales:
Appears in 1 contract
Samples: Doskocil Manufacturing Co Inc
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at least equal to the fair market value (such fair market value to be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the equity and assets subject to such Asset Disposition; (2) (A) at least 75% of the consideration received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, (i) if the assets subject to such Asset Disposition constitute Collateral, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Priority Lien Debt and other outstanding Priority Lien Obligations or Parity Lien Debt and other outstanding Parity Lien Obligations (in each case, other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased (and, with respect to Parity Lien Debt, such prepayment, repayment, redemption or purchase must be made either (x) for Securities only or (y) for Securities and other Parity Lien Debt, and in the case of subclause (y), by a pro rata prepayment, repayment or redemption of outstanding Securities and such other Parity Lien Debt or by an offer to purchase on a pro rata basis made to all holders of Securities and such other Parity Lien Debt) or (ii) if the assets subject to such Asset Disposition do not constitute Collateral, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor in each case that is Secured Debt or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided that, without limitation of the provisions of Section 10.03, any such Additional Assets, including the assets of any Person that becomes a Subsidiary Guarantor as a result of such transaction, acquired with Net Available Cash from an Asset Disposition of Collateral are, to the extent required by the Priority Lien Documents or the Security Documents (and pursuant to the terms thereof), pledged as Collateral; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Senior Indebtedness Parity Lien Debt of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness Parity Lien Debt of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior IndebtednessParity Lien Debt) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be as determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which whose determination shall will be conclusive evidence of compliance with this provision), and evidenced by a resolution of the equity Board of Directors (including as to the value of all noncash consideration) of the shares and assets subject disposed of by the Company or such Restricted Subsidiary pursuant to such Asset Disposition; , (2) (Aii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Designated Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) firstFIRST, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem repay or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 180 days from after the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) secondSECOND, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company or such Restricted Subsidiary elects, to acquire reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or to make capital expenditures in another Restricted Subsidiary) by the Oil and Gas Business within 540 later of (x) December 31, 1999, or (y) 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) thirdTHIRD, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders Offer (and to holders of other Senior Indebtedness of the Company designated by the Companyas defined below) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained of Section 4.06(b), and (D) FOURTH, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C), to fund (to the extent consistent with any other applicable provision of this Indenture) any corporate purpose; PROVIDED, which HOWEVER that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) reduced in an amount equal to (or greater than) the principal amount so prepaid, repaid or purchased. Pending application Notwithstanding the foregoing provisions of this Section 4.06, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash pursuant to in accordance with this Section 4.07(a), such 4.06 except to the extent that the aggregate Net Available Cash from all Asset Dispositions that is not applied in accordance with this Section 4.06 exceeds $2,000,000. For the purposes of this Section 4.06, the following are deemed to be cash: (x) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition (in which case the Company shall, without further action, be deemed to have applied such assumed Indebtedness in accordance with clause (A) above) and (y) securities or instruments received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash. Notwithstanding the foregoing, the Company and its Restricted Subsidiaries will be permitted to consummate any Asset Swap if (i) at the time of entering into such Asset Swap or immediately after giving effect to such Asset Swap, no Default or Event of Default shall have occurred or be continuing or would occur as a consequence thereof, (ii) in the event such Asset Swap involves an aggregate amount in excess of $2,000,000, the terms of such Asset Swap have been approved by a majority of the members of the Board of Directors and (iii) in the event such Asset Swap involves an aggregate amount in excess of $10,000,000, the Company has received a written opinion from an independent investment banking firm of nationally recognized standing that such Asset Swap is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view. The proceeeds of any sale of Capital Stock of a Restricted Subsidiary shall be invested treated as Net Available Cash from an Asset Disposition and must be applied in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt)accordance with the terms of this covenant.
Appears in 1 contract
Samples: Indenture (Ta Operating Corp)
