Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and 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 (including as to the value of all non-cash consideration), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition; (2) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents; provided that the amount of (A) any liabilities (as shown on the Company's or such 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for purposes of this provision and for no other purpose; 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) to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness or Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; (B) to the extent the Company elects, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; (C) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) of this paragraph (a)(3) of this Section 4.07, to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and (D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.07, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this covenant except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this covenant exceeds $15.0 million. Pending application of Net Available Cash pursuant to this Section 4.07, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. (b) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) of paragraph (a) of Section 4.07, the Company will purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph (c) of Section
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and 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 (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 (including as to the value of all non-cash consideration), as determined in good faith by the Company, Fair Market Value of the shares and assets subject to such Asset Disposition;,
(2ii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash cash, assets useful in a Permitted Business or cash equivalentsPermitted Securities; provided that the amount of (A) 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market valueshall be deemed cash for the purposes of this provision (but for no other purpose) so long as such amount, when taken together with the Fair Market Value when received of all other Designated Noncash Non-Cash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstandingoutstanding (i.e., that has not to been sold for or otherwise converted into cash), does not exceed $5.0 million at time of 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)35,000,000, shall be deemed to be cash for purposes of this provision and for no other purpose; 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 360 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 otherwise acquire for value Senior Indebtedness of the Company, Senior Indebtedness of a Subsidiary Guarantor or Indebtedness (other than any Disqualified Stock) of a 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 one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash);
(B2) 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 acquire reinvest in Additional Assets within one year from the later (including by means of the date of such Asset Disposition or the receipt of such an Investment in Additional Assets by a Restricted Subsidiary with Net Available CashCash received by the Company or another Restricted Subsidiary);
(C3) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A1) and (B) of this paragraph (a)(3) of this Section 4.072), to make an offer to the holders of the Securities Offer (and to holders of other Senior Subordinated Indebtedness designated by the Companyas defined in Section 3.09(b)) to purchase Securities (and such other Senior Subordinated Indebtedness) Notes pursuant to and subject to the conditions contained in this Indentureof Section 3.09(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 (determined based upon the respective principal amounts of the Notes and such other Senior Subordinated Indebtedness being purchased or repaid) to purchase the Notes and to purchase or otherwise repay such other Senior Subordinated Indebtedness of the Company, and
(D4) fourth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A1), (B2) and (C) of this paragraph (a) of this Section 4.073), for any general corporate purpose permitted pursuant to not prohibited by the terms of this Indenture; provided, however, however that in connection with any prepayment, repayment repayment, purchase, repurchase, redemption, retirement, defeasance or purchase other acquisition for value of Indebtedness pursuant to clause (A1) or (C3) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid repaid, purchased, repurchased, redeemed, retired, defeased or purchasedotherwise acquired for value. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 3.09, the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this covenant Section 3.09 except to the extent that the aggregate Net Available Cash from all Asset Dispositions which that is not applied in accordance with this covenant Section 3.09 exceeds $15.0 million50,000,000. Pending application For the purposes of Net Available Cash pursuant to this Section 4.073.09, the following are deemed to be cash:
(A) the assumption 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 and Preferred Stock of a Subsidiary Guarantor) and the release of the Company or such Net Available Cash shall be invested Restricted Subsidiary from all liability on such Indebtedness in Temporary Cash Investments connection with such Asset Disposition and
(B) securities received by the Company or applied to temporarily reduce revolving credit indebtednessany Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) Notes pursuant to clause (3)(C) of paragraph (a) of Section 4.073.09(a)(iii)(3), the Company will be required (i) to purchase Securities Notes tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) Notes (the "“Offer"”) at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but and unpaid interest thereon to the date of purchase (or, in respect subject to the right of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by Holders of record on the terms of such Senior Subordinated Indebtednessrelevant date to receive interest due on the relevant interest payment date) in accordance with the procedures (procedures, including prorating in the event of oversubscription) , set forth in paragraph this Indenture and (ii) to purchase or otherwise repay other Senior Subordinated Indebtedness of the Company on the terms and to the extent contemplated thereby at the purchase price set forth in the relevant documentation (including accrued and unpaid interest to the date of acquisition, the “purchase price”), provided that to the extent the purchase price of any such Senior Subordinated Indebtedness exceeds 100% of the principal amount thereof, plus accrued and unpaid interest thereon to the date of acquisition, the Company shall not use any Net Available Cash to pay such purchase price, except as permitted by the next sentence. If the aggregate purchase price of Notes (and other Senior Subordinated Indebtedness) tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of the Notes (and other Senior Subordinated Indebtedness), the Company shall apply the remaining Net Available Cash in accordance with Section 3.09(a)(iii)(4). The Company shall not be required to make an Offer for Notes (and other Senior Subordinated Indebtedness) pursuant to this Section 3.09 if the Net Available Cash available therefor (after application of the proceeds as provided in clauses (1) and (2) of Section 3.09(a)(iii)) is less than $50,000,000 for any particular Asset Disposition (which lesser amount will be carried forward for purposes of determining whether an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(c) (i) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall be obligated to deliver to the Trustee and send or, at the request of Sectionthe Company have the Trustee send, in the name and on behalf of the Company, by first-class mail to each Holder, a written notice stating that the Holder may elect to have its Notes purchased by the Company either in whole or in part (subject to prorating as hereinafter described in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the “Purchase Date”) and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum shall include (1) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports); provided that in lieu of providing the reports specified in this subclause (1), the Company may, at its option, notify the holders that such reports are available to them in electronic format through the SEC’s XXXXX system, (2) a description of material developments in the Company’s business subsequent to the date of the latest of such reports, and (3) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Notes pursuant to the Offer, together with the address referred to in clause (iii).
Appears in 1 contract
Samples: Second Supplemental Indenture (Alliant Techsystems Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company Each of Superior Energy and Issuer will not, and will not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless:
(1) the Company Superior Energy, Issuer 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 (including as to the value of all non-cash consideration), ) as determined in good faith by the CompanyBoard of Directors of Superior Energy, an Officer of Superior Energy, an Officer of Issuer or an Officer of such Restricted Subsidiary with responsibility for such transaction, which determination shall be conclusive evidence of compliance with this provision, of the shares and assets subject to such Asset Disposition;
(2) in the case of an Asset Disposition for consideration exceeding $40.0 million, the fair market value is determined, in good faith, by the Board of Directors of Superior Energy, and evidenced by a resolution of the Board of Directors of Superior Energy set forth in an Officers’ Certificate delivered to the Trustee;
(3) either (a) at least 75% of the consideration thereof received by the Company Superior Energy, Issuer or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or cash equivalents; provided that Temporary Cash Investments or (b) the amount of (A) 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of receipt of such Designated Noncash Consideration value (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), shall be deemed ) of all forms of consideration other than cash or Temporary Cash Investments received for all Asset Dispositions since the Issue Date does not exceed in the aggregate an amount equal to be cash for purposes 10% of this provision and for no other purposeConsolidated Tangible Assets at the time each determination is made; and
(34) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (Superior Energy, Issuer or such Restricted Subsidiary, as the case may be), within 365 days after its receipt, at its option:
(A) to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior repay Secured Indebtedness or Indebtedness (other than any Disqualified Stock) of under a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available CashDebt Facility;
(B) to the extent the Company elects, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;to make capital expenditures in a Related Business; and
(C) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) of this paragraph (a)(3) of this Section 4.07), to make an offer to the holders of the Securities Holders (and to holders of other Senior Subordinated Indebtedness designated by of Issuer that is pari passu with the CompanyNotes) to purchase Securities Notes (and such other Senior Subordinated IndebtednessIndebtedness of Issuer) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.07above, the Company Issuer or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (commitment, if any) , to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this covenant except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this covenant exceeds $15.0 million. Pending application of Net Available Cash pursuant to this Section 4.074.10, such Net Available Cash shall be invested in Temporary Cash Investments or applied used to temporarily reduce loans outstanding under any revolving credit indebtednessfacility existing under a Debt Facility. For the purposes of this Section 4.10, the following are deemed to be cash or Temporary Cash Investments: (i) the assumption of Obligations of Superior Energy, Issuer or any Restricted Subsidiary (other than any of their Subordinated Obligations) and the release of Superior Energy, Issuer or such Restricted Subsidiary, as the case may be, from all liability on such Obligations in connection with such Asset Disposition, (ii) any securities received by Issuer or any Restricted Subsidiary from the transferee that are promptly converted by Issuer or such Restricted Subsidiary into cash within 180 days after the receipt thereof (to the extent of cash received) and (iii) any Designated Noncash Consideration received by Superior Energy, Issuer or any 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 (iii) that is at that time outstanding, not to exceed the greater of (x) $30.0 million and (y) 1.5% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value). The requirement of Section 4.10(a)(4) shall be deemed to be satisfied if an agreement (including a lease) committing to make the acquisitions or expenditures referred to therein is entered into by Superior Energy, Issuer or a Restricted Subsidiary within the time period specified in such clause and such Net Available Cash is subsequently applied in accordance with such agreement within six months following such agreement. Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in Section 4.10(a)(4)(A) or (B) within the time period set forth therein will be deemed to constitute “Excess Proceeds.
(b) In ” When the event aggregate amount of Excess Proceeds exceeds $30.0 million, Issuer will make an Asset Disposition that requires Offer to all Holders and, to the extent required under the terms of outstanding pari passu Indebtedness of Issuer, to the holders of such outstanding pari passu Indebtedness, to purchase the maximum aggregate principal amount of the Securities (and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) of paragraph (a) of Section 4.07, the Company will purchase Securities tendered pursuant to an offer by the Company for the Securities (Notes and such other Senior Subordinated Indebtedness) (the "Offer") pari passu Indebtedness of Issuer in an amount equal to $2,000 or an integral multiple of $1,000 in excess thereof at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated pari passu Indebtedness of Issuer was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest and Additional Interest (or, in respect of such other Senior Subordinated Indebtednesspari passu Indebtedness of Issuer, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated IndebtednessIndebtedness of Issuer) to but excluding the purchase date in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph Section 3.09. Issuer may satisfy the foregoing obligations with respect to such Net Available Cash from an Asset Disposition by making an offer with respect to such Net Available Cash prior to the expiration of the application period. To the extent that the aggregate amount of Notes and such pari passu Indebtedness tendered pursuant to an Asset Disposition Offer is less than the Excess Proceeds, Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to compliance with other covenants contained in this Indenture. If the aggregate principal amount of Notes or the pari passu Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee or the applicable Registrar shall select the Notes and Issuer or agent for such pari passu Indebtedness shall select such pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount (cor accreted value) of Sectionthe Notes or such pari passu Indebtedness tendered. Upon completion of any such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each of Superior Energy and Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to Section 3.09 hereof and this Section 4.10. To the extent that the provisions of any securities laws or regulations conflict with provisions of Section 3.09 hereof and this Section 4.10, each of Superior Energy and Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof and this Section 4.10 by virtue of its compliance with such securities laws or regulations. Upon the occurrence of an Investment Grade Rating Event, this Section 4.10 will cease to apply to Issuer and will no longer have effect.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will 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 (including as to the value of all non-cash consideration), as determined in good faith by the CompanyBoard of Directors, of the shares and assets subject to such Asset Disposition;
; (2) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash, cash equivalents; provided that the amount of (A) 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 , Additional Assets or any Restricted Subsidiary combination thereof (other than liabilities that are by their terms subordinated to the Securities"Permitted Consideration"); provided, that are assumed by the transferee of any such assets (provided however, that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an shall be permitted to receive Property other than Permitted Consideration, so long as the aggregate fair market value, when taken together with as determined in the good faith of the Board of Directors, of all such Property other Designated Noncash than Permitted Consideration received pursuant to this clause (C) from Asset Dispositions and held by the Company and the Restricted Subsidiaries at any one time shall not exceed 10% of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received Adjusted Consolidated Net Tangible Assets; and without giving effect to subsequent changes in value), shall be deemed to be cash for purposes of this provision and for no other purpose; 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 Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year 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 application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets within 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) of this paragraph (a)(3) of this Section 4.07), to make an offer Offer to the holders of the Debt Securities (and to holders of other Senior Subordinated Indebtedness of the Company designated by the Company) to purchase Debt Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (ASection 4.15(b), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that in connection with any prepayment, repayment repay ment or purchase of Indebtedness pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph ,
(a) of this Section 4.07 the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this covenant except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is are not applied in accordance with this covenant Section 4.15(a) exceeds $15.0 20.0 million. Pending application of Net Available Cash pursuant to this Section 4.074.15(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 (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.
(b) In the event of an Asset Disposition that requires the purchase of the Debt Securities (and other Senior Subordinated Indebtedness) Indebtedness pursuant to clause (3)(C) of paragraph (a) of Section 4.074.15(a)(3)(C), the Company will shall purchase Debt Securities tendered pursuant to an offer by the Company for the Debt Securities (and such other Senior Subordinated Indebtedness) Indebtedness (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) Indebtedness in accordance with the procedures (including prorating prorationing in the event of oversubscriptionover subscription) set forth in paragraph Section 4.15(c). If the aggregate purchase price of Debt Securities (cand any other Senior Indebtedness tendered pursuant to the Offer) exceeds the Net Available Cash allotted to their purchase, the Company shall select the Debt Securities and other Senior Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Debt Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Debt Securities (and other Senior Indebtedness pursuant to this Section 4.15 if the Net Available Cash available therefor is less than $20.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Debt Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.15(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Debt Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.15(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Debt Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Debt Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Debt Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.15.
(3) Holders electing to have a Debt Security purchased shall be required to surrender the Debt Security, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Debt Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Debt Security purchased. Holders whose Debt Securities are purchased only in part shall be issued new Debt Securities equal in principal amount to the unpurchased portion of the Debt Securities surrendered.
(4) At the time the Company delivers Debt Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Debt Section. A Debt Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Debt Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Second Supplemental Indenture (Pioneer Natural Resources Co)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless:
(1) the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time (including by way of such Asset Disposition relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (including as such fair market value to be determined on the value date of all non-cash considerationcontractually agreeing to such Asset Disposition), as determined in good faith by the CompanyIssuer, of the 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 (except to the extent the Asset Disposition is a Permitted Asset Swap), with a purchase price in excess of (x) prior to the Conversion Date, $150 million and (y) after the Conversion Date, the greater of $150.0 million and 5.5% of LTM EBITDA, at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents; provided that the amount of (A) any liabilities (as shown on the Company's or such 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market valueDisposition, when taken together with all other Designated Noncash Consideration received pursuant to this clause Asset Dispositions since the Issue Date (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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 valueon a cumulative basis), shall be deemed to be cash for purposes (including by way of this provision and for no relief from, or by any other purpose; and
(3Person assuming responsibility for, any liabilities, contingent or otherwise) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied received by the Company (Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents (which determination may be made by the Issuer, at its option, either (x) on the date of contractually agreeing to such Asset Disposition or (y) at the time the Asset Disposition is completed); and
(3) within 365 days from the later of (A) the 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 as set forth below, the “Proceeds Application Period”), an amount equal to such Net Available Cash is applied, to the extent the Issuer or any Restricted Subsidiary, as the case may be, elects:
(i) (a) to the extent such Net Available Cash are from an Asset Disposition of Collateral (w) to reduce, prepay, repay or purchase any First Lien Obligations, including Indebtedness under the Company elects Credit Agreements or the First Lien Notes (or is required by the terms of any IndebtednessRefinancing Indebtedness in respect thereof), (x) to reduce, prepay, repayrepay or purchase any Second Lien Obligations other than Second Lien Note Obligations (or any Refinancing Indebtedness in respect thereof); provided that, if the Issuer shall so reduce, repay or repurchase such Second Lien Obligations, the Issuer ratably offer to repurchase Notes (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer or Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Senior Notes through open-market purchases or in privately negotiated transactions, (y) to make an offer (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer or Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, or (z) to reduce, prepay, repay or purchase any Indebtedness or Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary Non-Guarantor (in each case case, other than Indebtedness owed to the Company Issuer or an Affiliate of the Company) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(B) to the extent the Company elects, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(C) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) of this paragraph (a)(3) of this Section 4.07, to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (Aany Restricted Subsidiary), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (A) or (C) of this paragraph (a) of this Section 4.07), the Company Issuer or such Restricted Subsidiary shall permanently will retire such Indebtedness and shall will cause the related loan commitment (if anyother than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to be permanently reduced in an amount equal to the principal amount so reduced, prepaid, repaid or purchased. Notwithstanding ;
(b) to the foregoing provisions extent such Net Available Cash is from an Asset Disposition that does not constitute Collateral, (v) to reduce, prepay, repay or purchase any Indebtedness secured by a Lien on such asset, (w) to reduce, prepay, repay or purchase any First Lien Obligations, including Indebtedness under the Credit Agreements or the First Lien Notes (or any Refinancing Indebtedness in respect thereof) (x) to reduce, prepay, repay or purchase other senior Indebtedness; provided, that the Issuer ratably offer to repurchase Notes (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer or Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, (y) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, or (z) to reduce, prepay, repay or purchase any Indebtedness of a Non-Guarantor (in each case, other than Indebtedness owed to the Issuer or any Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this paragraph clause (b), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to be reduced in an amount equal to the principal amount so reduced, prepaid, repaid or purchased;
(a) to invest (including capital expenditures) in or commit to invest in Additional Assets (including by means of this Section 4.07 an investment in Additional Assets by a Restricted Subsidiary); or (b) to invest (including capital expenditures) in any one or more businesses (provided that any such business will be a Restricted Subsidiary), properties or assets that replace the Company and businesses, properties and/or assets that are the Restricted Subsidiaries will not be required to apply subject of such Asset Disposition, with any such investment made by way of a capital or other lease valued at the present value of the minimum amount of payments under such lease (as reasonably determined by the Issuer); provided, that the assets (including Capital Stock) acquired with the Net Available Cash in accordance with this covenant except of a disposition of Collateral are pledged as Collateral to the extent required under the Security Documents; provided, further, that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this covenant exceeds $15.0 million. Pending a binding agreement shall be treated as a permitted application of Net Available Cash pursuant from the date of such commitment with the good faith expectation that an amount equal to this Section 4.07, 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 (ban “Acceptable Commitment”) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) of paragraph (a) of Section 4.07, the Company will purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (orand, in the event of any Acceptable Commitment is later cancelled or terminated for any reason before such other Senior Subordinated Indebtedness was issued with significant original issue discountamount is applied in connection therewith, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of then such other Senior Subordinated Indebtedness, such lesser price, if anyApplicable Proceeds shall constitute Collateral Excess Proceeds or Excess Proceeds, as the case may be provided for by the terms of such Senior Subordinated Indebtedness) in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph (c) of Sectionbe; or
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless:
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 (including as to the value of all non-cash noncash consideration), as determined in good faith by the CompanyBoard of Directors, of the shares and assets subject to such Asset Disposition;
(2) Disposition and at least 7585% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents; provided that the amount of (A) any liabilities (as shown on the Company's or such 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 equivalents and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for purposes of this provision and for no other purpose; 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 IndebtednessSenior Indebtedness of the Company), to prepay, repay, redeem or purchase repurchase Senior Indebtedness of the Company or Indebtedness (other than any Disqualified StockStock or, in the case of a Subsidiary Guarantor, any Subordinated Obligations) of a Restricted Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year 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 application in accordance with clause (A), to the extent the Company elects, to acquire invest 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 in excess of $250,000 in any fiscal year after application in accordance with clauses (AclausesE(A) and (B) of this paragraph (a)(3) of this Section 4.07), to make an offer to the holders of the Securities Notes (and to holders of other Senior Subordinated Indebtedness of the Company designated by the Company) to purchase Securities Notes (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this IndentureSection 4.07(b); and
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) the acquisition by the Company or any Wholly Owned Subsidiary of this paragraph Additional Assets or (ay) the prepayment, repayment or purchase of Indebtedness (other than any Disqualified Stock) of this Section 4.07, for the Company (other than Indebtedness owned to an Affiliate of the Company) or Indebtedness of any general corporate purpose permitted pursuant Subsidiary (other than Indebtedness owed to the terms Company or an Affiliate of this Indenture; the Company), in each case within one year from the later of the receipt of such Net Available Cash and the date the offer described in Section 4.07(b) is consummated, provided, however, that that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A), (C) or (CD) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 paragraph, the Company and the Restricted Subsidiaries will shall not be required to apply any Net Available Cash in accordance with this covenant paragraph except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this covenant paragraph exceeds $15.0 5.0 million. Pending application of Net Available Cash pursuant to this Section 4.07covenant, such Net Available Cash shall be invested in Temporary Cash Investments Permitted Investments. For the purposes of this Section 4.07, the following are deemed to be cash or applied to temporarily reduce revolving credit indebtednesscash 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 (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.
(b) In the event of an Asset Disposition that requires the purchase of the Securities Notes (and other Senior Subordinated Indebtedness) pursuant to clause (3)(Cii)(C) of paragraph (a) of Section 4.07, the Company will purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph (c) of Sectionof
Appears in 1 contract
Samples: Indenture (Shared Technologies Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless:
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 Fair Market Value (including as to the value of all non-cash consideration), as determined in good faith by the CompanyBoard of Directors, of the shares and assets subject to such Asset Disposition;
Disposition and (2ii) 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 equivalents; provided . In the event and to the extent that the amount of (A) 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities Net Available Cash received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries from one or more Asset Dispositions occurring on or after May 17, 1999 in any period of 12 consecutive months exceeds 10% of Adjusted Consolidated Net Tangible Assets (determined as of the date closest to the commencement of such Asset Disposition having an aggregate fair market value, when taken together 12-month period for which a consolidated balance sheet has been filed with all other Designated Noncash Consideration received the Commission or provided to the Trustee pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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 value7.04(a)), shall be deemed to be cash for purposes of this provision and for no other purpose; and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by then the Company (shall or such shall cause the relevant Restricted Subsidiary, as the case may be)Subsidiary to:
(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 Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year 360 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 application, if any, in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets within one year 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 application, if any, in accordance with clauses (A) and (B) of this (the “Offer Excess Proceeds”), and subject to paragraph (a)(3b) of this Section 4.07below, to make an offer to the holders of the Securities Notes (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities Notes (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained set forth in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph (ab) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenturebelow; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 paragraph, the Company and the Restricted Subsidiaries will shall be entitled, but shall not be required required, to apply any Net Available Cash in accordance accor- dance with this covenant paragraph except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is are not applied in accordance with this covenant paragraph exceeds $15.0 US$10 million. Pending application of Net Available Cash pursuant to this Section 4.07covenant, such Net Available Cash shall be invested in Temporary Cash Investments Permitted Investments. For the purposes of this covenant, the following are deemed to be cash or applied to temporarily reduce revolving credit indebtednesscash equivalents: (x) the assumption of Indebtedness (other than Subordinated Obligations) 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 (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.
(b) In the event of an Asset Disposition that requires an offer to purchase the purchase of the Securities Notes (and other Senior Subordinated Indebtedness) pursuant to clause (3)(Ca)(C) of paragraph (a) of Section 4.07above, the Company will be required to purchase Securities (an “Asset Sale Offer”), from all Holders issued under this Indenture, that aggregate principal amount of Notes as can be purchased by application of such Offer Excess Proceeds at a price in cash equal to 100% of the principal amount thereof plus, in each case, accrued and unpaid interest, if any, to the purchase date. Each Asset Sale Offer shall remain open for a period of 20 business days or such longer period as may be required by law. To the extent that the aggregate purchase price for the applicable issue of Notes tendered pursuant to an offer Asset Sale Offer is less than the Offer Excess Proceeds, the Company or any Restricted Subsidiary may use such deficiency for general corporate purposes. If the aggregate purchase price for the Notes validly tendered and not withdrawn by holders thereof exceeds the amount of Notes which can be purchased with the Offer Excess Proceeds, Notes to be purchased will be selected on a pro rata basis. Upon completion of such Asset Sale Offer, the amount of Offer Excess Proceeds shall be reset to zero. Notice of an Asset Sale Offer shall be mailed by the Company (or upon the Company’s request, at the Company’s expense, shall be mailed by the Trustee), not more than 20 Business Days after the obligation to 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 Securities (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 other Senior Subordinated Indebtedness) Asset Sale Offer (the "“Asset Sale Offer Purchase Date”). The notice, which shall govern the terms of the Asset Sale Offer", shall include such disclosures as are required by law and shall state:
(i) at that the Asset Sale Offer is being made pursuant to this Section 10.15 and that the Asset Sale Offer shall remain open for a period of 20 Business Days or such longer period as may be required by law;
(ii) the purchase price (including the amount of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser priceinterest, if any) for each Note, as may be provided the Asset Sale Offer Purchase Date and the date on which the Asset Sale Offer expires;
(iii) that any Note not tendered for by the terms of such Senior Subordinated Indebtedness) payment will continue to accrue interest in accordance with the procedures terms thereof;
(including prorating iv) that, unless the Company shall default in the event payment of oversubscriptionthe purchase price, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Asset Sale Offer Purchase Date;
(v) set that Holders electing to have Notes purchased pursuant to an Asset Sale Offer will be required to surrender their Notes to the Paying Agent at the address specified in the notice prior to 5:00 p.m., New York City time, on the Asset Sale Offer Purchase Date and must complete any form letter of transmittal proposed by the Company and acceptable to the Trustee and the Paying Agent;
(vi) that Holders of Notes will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the Asset Sale Offer Purchase Date, a facsimile transmission or letter setting forth the name of the Holders, the principal amount of Notes the Holders delivered for purchase, the Note certificate number (if any) and a statement that such Holder is withdrawing his election to have such Notes pur- chased;
(vii) that Holders whose Notes are purchased only in paragraph part will be issued Notes of like tenor equal in principal amount to the unpurchased portion of the Notes surrendered;
(cviii) the instructions that Holders must follow in order to tender their Notes; and
(ix) information concerning the business of Sectionthe Company, the most recent annual and quarterly reports of the Company filed with the SEC pursuant to the Exchange Act (or, if the Company is not required to file any such reports with the SEC, the comparable reports prepared pursuant to Section 7.04(a)) and such other information concerning the circumstances and relevant facts regarding such Asset Sale and Asset Sale Offer as would, in the good faith judgment of the Company, be material to a Holder of Notes in connection with the decision of such Holder as to whether or not it should tender Notes pursuant to the Asset Sale Offer. On the Asset Sale Offer Purchase Date, the Company will (i) accept for payment Notes or portions thereof tendered pursuant to the Asset Sale Offer, (ii) deposit with the Paying Agent money, in immediately available funds, sufficient to pay the purchase price of all Notes or portions thereof so tendered and accepted and (iii) deliver to the Trustee the Notes so accepted together with an Officers’ Certificate setting forth the Notes or portions thereof tendered to and accepted for payment by the Company. The Paying Agent will promptly mail or deliver to the Holders of Notes so accepted payment in an amount equal to the purchase price, and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Note of like tenor equal in principal amount to any unpurchased portion of the Note surrendered. Any Notes not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer not later than the first Business Day following the Asset Sale Offer Purchase Date.
Appears in 1 contract
Samples: Indenture (Alestra)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will 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 (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors of the Company, of the shares and assets subject to such Asset Disposition;
; (2) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents; equivalents (provided that such 75% requirement shall not apply to any Asset Disposition in which the cash or cash equivalents portion of the consideration received therefor is no less than an amount equal to the product of (x) 4.5 and (y) the amount of (A) any liabilities (as shown on EBITDA for 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 previously completed four fiscal quarters directly attributable to the Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries Capital Stock included in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received Disposition); and without giving effect to subsequent changes in value), shall be deemed to be cash for purposes of this provision and for no other purpose; 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 Indebtedness (other than any Disqualified Stock) of a Restricted Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year thirteen months 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 application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets within one year thirteen months 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 in accordance with clauses (A) and (B) of this paragraph (a)(3) of this Section 4.07), 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 IndebtednessIndebtedness of the Company) pursuant to and subject to the conditions contained in of this Indenture; and
and (D) fourth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph (a) of this Section 4.07), for any general corporate purpose permitted pursuant to 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) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 4.06, the Company and the Restricted Subsidiaries will shall not be required to apply any Net Available Cash in accordance with this covenant Section 4.06 except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is are not applied in accordance with this covenant Section 4.06 exceeds $15.0 million20,000,000. 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 4.074.06, such Net Available Cash shall may be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtednessSenior 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: (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.
(b) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated IndebtednessIndebtedness of the Company) pursuant to clause (3)(C) of paragraph (a) of Section 4.074.06(a)(3)(C), the Company will shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount Accreted Value (or, in the event such other Senior Subordinated Indebtedness of the Company was not issued with significant original issue discount, 100% of the accreted value principal amount thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated IndebtednessIndebtedness of the Company) in accordance with the procedures (including prorating prorationing in the event of oversubscription) set forth in paragraph Section 4.06(c). If the aggregate purchase price of Securities tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities to be purchased on a pro rata basis but in round denominations, which in the case of the Securities shall be denominations of $1,000 principal amount at maturity or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (cand other Senior Indebtedness) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $20,000,000 (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount at maturity, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall state (A) that the Company has become obligated to make an Offer, (B) the aggregate principal amount at maturity of Securities that is subject to such Offer, (C) the purchase price, (D) the circumstances and relevant facts regarding such Asset Disposition, (E) the Purchase Date and (F) the instructions, as determined by the Company, consistent with this Section 4.06, that a Holder must follow in order to have its Securities purchased.
(1) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Indebtedness of the Company included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On or prior to each Purchase Date, the Company shall deposit with a Paying Agent an amount equal to the applicable Offer Amount. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(2) Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount at maturity of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount at maturity to the unpurchased portion of the Securities surrendered.
(3) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section 4.06. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of Sectionthe Exchange Act and any other securities laws or regulations in connection with the repurchase of Securities pursuant to this Section 4.06. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.06, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.06 by virtue of its compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Indenture (Buffets Holdings, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time (including by way of such Asset Disposition relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors of the Company whose determination shall be conclusive (including as to the value of all non-cash consideration), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition;
(2) in the case of any Asset Disposition (or series of related Asset Dispositions) and unless the Asset Disposition is a Permitted Asset Swap, at least 75% of the consideration thereof from such Asset Disposition (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness) received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash cash, Cash Equivalents or cash equivalents; provided that the amount of (A) 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for purposes of this provision and for no other purposeTemporary Cash 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) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any IndebtednessSenior Indebtedness or Indebtedness of a Restricted Subsidiary), to prepay, repay, redeem repay or purchase Senior Indebtedness or Indebtedness of a Restricted Subsidiary (other than any Disqualified StockStock or Note Guarantor Subordinated Obligations) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Companya Restricted Subsidiary) within one year 365 days from the later of the date of such Asset Disposition or and the receipt of such Net Available Cash;
(B) to the extent the Company elects, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(C) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) of this paragraph (a)(3) of this Section 4.07, to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.074.10(a)(3)(A), the Company or such Restricted Subsidiary shall permanently will retire such Indebtedness and shall will 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 ; or
(B) to the foregoing provisions of this paragraph (a) of this Section 4.07 extent the Company or such Restricted Subsidiary elects, to invest in or commit to invest 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 365 days from the later of (x) the date of such Asset Disposition and (y) the Restricted Subsidiaries receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive agreement or a commitment approved by the Board of Directors of the Company that is executed or approved within such time will not be required to apply satisfy this requirement, so long as such investment is consummated within 6 months of such 365th day; provided that, pending the final application of any such Net Available Cash in accordance with clause (A) or clause (B) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this covenant Indenture.
(b) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in the preceding paragraph will be deemed to constitute “Excess Proceeds.” On the 366th day after an Asset Disposition, if the aggregate amount of Excess Proceeds exceeds €20 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all holders of Senior Notes and, to the extent the Company elects, to all holders of other Senior Indebtedness outstanding requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Senior Notes”), to purchase the maximum principal amount of Senior Notes and any such Pari Passu Senior Notes to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Senior Notes and Pari Passu Senior Notes plus accrued and unpaid interest and Additional Amounts, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Senior Notes, as applicable, in each case in integral multiples of €1,000 in the case of Senior Euro Notes or $1,000 in the case of Senior Dollar Notes.
(c) To the extent that the aggregate amount of Senior Notes and Pari Passu Senior Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of the Senior Notes surrendered in any Asset Disposition Offer by holders thereof and other Pari Passu Senior Notes surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Excess Proceeds shall be allocated among the Senior Notes and Pari Passu Senior Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Senior Notes and Pari Passu Senior Notes. For the purposes of calculating the principal amount of any such Indebtedness not denominated in euro, such Indebtedness shall be calculated by converting any such principal amounts into their Euro Equivalent determined as of a date selected by the Company that is within the Asset Disposition Offer Period. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(d) Any Net Available Cash payable in respect of the Senior Notes pursuant to this Section 4.10 will be apportioned between the Senior Dollar Notes and the Senior Euro Notes in proportion to the respective aggregate principal amounts of Senior Dollar Notes and Senior Euro Notes validly tendered and not withdrawn, based upon the Euro Equivalent of such principal amount of Senior Dollar Notes determined as of a date selected by the Company that is within the Asset Disposition Offer Period. To the extent that any portion of Net Available Cash payable in respect of the Senior Notes is denominated in a currency other than the currency in which the relevant Senior Notes are denominated, the amount thereof payable in respect of such Senior Notes shall not exceed the net amount of funds in the currency in which such Senior Notes are denominated that is actually received by the Company upon converting such portion into such currency.
(e) The Asset Disposition Offer, in so far as it relates to the Senior Notes, will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this covenant exceeds $15.0 million. Pending application of Net Available Cash pursuant to this Section 4.07, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness.
(b) In the event of an “Asset Disposition that requires Offer Period”). No later than five Business Days after the purchase termination of the Securities Asset Disposition Offer Period (and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) of paragraph (a) of Section 4.07the “Asset Disposition Purchase Date”), the Company will purchase Securities tendered the principal amount of Senior Notes and, to the extent it elects, Pari Passu Senior Notes required to be purchased by it pursuant to this Section 4.10 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Senior Notes and, to the extent it elects, Pari Passu Senior Notes validly tendered in response to the Asset Disposition Offer.
(f) In the case of certificated Senior Notes, if the Asset Disposition Purchase Date is on or after an offer interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the Person in whose name a Senior Note is registered at the close of business on such record date, and no additional interest will be payable to holders who tender Senior Notes pursuant to the Asset Disposition Offer. In the case of global bearer Senior Notes, the Company will pay accrued and unpaid interest to the Change of Control Payment Date to the Holders on such date.
(g) On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Senior Notes and, to the extent it elects, Pari Passu Senior Notes or portions of Senior Notes and, to the extent it elects, Pari Passu Senior Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Senior Notes and Pari Passu Senior Notes so validly tendered and not properly withdrawn, in each case in integral multiples of €1,000 or $1,000, as the case may be. The Company will deliver to the Senior Trustee an Officer’s Certificate stating that such Senior Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.10. The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after termination of the Asset Disposition Offer Period) mail or deliver to each tendering holder of Senior Notes an amount equal to the purchase price of the Senior Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Securities Company will promptly issue a new Senior Note, and the Senior Trustee, upon delivery of an Officer’s Certificate from the Company will authenticate and mail or deliver (or cause to be transferred by book entry) such new Senior Note to such holder, in a principal amount equal to any unpurchased portion of the Senior Note surrendered; provided that each such new Senior Note will be in a principal amount of €1,000 in the case of Senior Euro Notes or $1,000 in the case of Senior Dollar Notes, or an integral multiple of €1,000 or $1,000, as the case may be. Any Senior Note not so accepted will be promptly mailed or delivered (or transferred by book entry) by the Company to the holder thereof.
(h) For the purposes of Section 4.10(a)(2), the following will be deemed to be cash:
(1) the assumption by the transferee of Indebtedness of the Company (other than Disqualified Stock or Subordinated Obligations of the Company) or Indebtedness of a Restricted Subsidiary (other than Note Guarantor Subordinated Obligations) and the release of the Company or such Restricted Subsidiary from all liability on the principal amount of such Indebtedness in connection with such Asset Disposition;
(2) securities, notes or other Senior Subordinated Indebtednessobligations 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;
(3) 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 are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Disposition;
(4) consideration consisting of Indebtedness of the "Offer"Company or any Restricted Subsidiary; and
(5) any Designated Non-Cash Consideration received by the Company or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section 4.10 that is at a purchase price of 100that time outstanding, not to exceed 10% of their principal amount (or, in Total Assets at the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% time of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect receipt of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) in accordance Designated Non-Cash Consideration (with the procedures 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).
(including prorating in i) The Company will comply, to the event extent applicable, with the requirements of oversubscription) set forth in paragraph (cSection 10(e) of Sectionthe Exchange Act and any other securities laws or regulations in connection with the repurchase of Senior Notes pursuant to this Indenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of any conflict.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will 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 (including as to the value of all non-cash consideration), as determined in good faith by the CompanyBoard of Directors, of the shares and assets subject to such Asset Disposition;
; (2) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash, cash equivalents; provided that the amount of (A) 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 , Additional Assets or any Restricted Subsidiary combination thereof (other than liabilities that are by their terms subordinated to the Securities"Permitted Consideration"); provided, that are assumed by the transferee of any such assets (provided however, that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an shall be permitted to receive Property other than Permitted Consideration, so long as the aggregate fair market value, when taken together with as determined in the good faith of the Board of Directors, of all such Property other Designated Noncash than Permitted Consideration received pursuant to this clause (C) from Asset Dispositions and held by the Company and the Restricted Subsidiaries at any one time shall not exceed 10% of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received Adjusted Consolidated Net Tangible Assets; and without giving effect to subsequent changes in value), shall be deemed to be cash for purposes of this provision and for no other purpose; 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 Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year 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 application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets within 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) of this paragraph (a)(3) of this Section 4.07), to make an offer Offer to the holders of the Debt Securities (and to holders of other Senior Subordinated Indebtedness of the Company designated by the Company) to purchase Debt Securities (and such other Senior Subordinated Senor Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (ASection 4.15(b), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 4.15, the Company and the Restricted Subsidiaries will shall not be required to apply any Net Available Cash in accordance with this covenant Section 4.15
(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is are not applied in accordance with this covenant Section 4.15(a) exceeds $15.0 20.0 million. Pending application of Net Available Cash pursuant to this Section 4.074.15(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 (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.
(b) In the event of an Asset Disposition that requires the purchase of the Debt Securities (and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) of paragraph (a) of Section 4.074.15(a)(3)(C), the Company will shall purchase Debt Securities tendered pursuant to an offer by the Company for the Debt Securities (and such other Senior Subordinated Indebtedness) Indebtedness (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) Indebtedness in accordance with the procedures (including prorating prorationing in the event of oversubscriptionover subscription) set forth in paragraph Section 4.15(c). If the aggregate purchase price of Debt Securities (cand any other Senior Indebtedness tendered pursuant to the Offer) exceeds the Net Available Cash allotted to their purchase, the Company shall select the Debt Securities and other Senior Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of Sectionthe Debt Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Debt Securities (and other Senior Indebtedness pursuant to this Section 4.15 if the Net Available Cash available therefor is less than $20.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Debt Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.15(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable
Appears in 1 contract
Samples: Third Supplemental Indenture (Pioneer Natural Resources Co)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will 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 (including as to the value of all non-cash consideration), as determined in good faith by the CompanyBoard of Directors, of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents; equivalents (provided that such 75% requirement shall not apply to any Asset Disposition in which the cash or cash equivalents portion of the consideration received therefor is no less than an amount equal to the product of (x) six and (y) the amount of (A) 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 EBITDA directly attributable to the Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries Capital Stock included in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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 valueDisposition), shall be deemed to be cash for purposes of this provision and for no other purpose; 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 or Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year 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 application in accordance with clause (A), to the extent the Company elects, to acquire 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 in accordance with clauses (A) and (B) of this paragraph (a)(3) of this Section 4.07), to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this the Indenture; and
(D) fourth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph (a) of this Section 4.07), for any general corporate purpose permitted pursuant to not prohibited by the terms of this the Indenture; providedPROVIDED, howeverHOWEVER, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 covenant, the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this covenant except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is are not applied in accordance with this covenant exceeds $15.0 10.0 million. Pending application of Net Available Cash pursuant to this Section 4.07covenant, such Net Available Cash shall be invested in Temporary Cash Permitted Investments or applied used to temporarily reduce revolving credit indebtednessloans outstanding under Revolving Credit Facilities. For the purposes of this covenant, 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
(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.
(b) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) of paragraph (a) of Section 4.074.06(a)(3)(C), the Company will shall be required to purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, ) plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph Section 4.06(c). If the aggregate purchase price of Securities (cand any other Senior Subordinated Indebtedness) tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase thereof, the Company shall be required to apply the remaining Net Available Cash in accordance with Section 4.06(a)(3)(D). If the aggregate purchase price of the securities tendered exceeds the Net Available Cash allotted to purchase thereof, the Company will select the securities to be purchased on a pro rata basis but in denominations of $1,000 or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as hereinafter described in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (i) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (ii) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (iii) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (i) the amount of the Offer (the "Offer Amount"), (ii) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.06(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is acting as its own paying agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. If at the expiration of the Offer Period the aggregate principal amount of Securities (and any other Senior Subordinated Indebtedness included in the Offer) surrendered by holders thereof exceeds the Offer Amount, the Company shall select the Securities and the other Senior Subordinated Indebtedness to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Securities and the other Senior Subordinated Indebtedness in denominations of $1,000, or integral multiples thereof, shall be purchased). Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.06(d) by virtue thereof.
Appears in 1 contract
Samples: Indenture (Interactive Media Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and 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 (including as to the value of all non-cash consideration), as determined in good faith by the CompanyBoard of Directors, of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalentsCash Equivalents or Additional Assets; provided that the amount of (A) 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 Securities), that are assumed by the transferee of any such assets (provided PROVIDED that the Company or such Restricted Subsidiary is released from all liability will not need to comply with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C2) with respect to an Asset Disposition consisting of this paragraph (a) all or substantially all of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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 assets used in value), shall be deemed to be cash for purposes of this provision and for no other purposeits Connectivity Solutions business; 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 Indebtedness (other than any Disqualified Stock) of a Restricted Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year 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 application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets within 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) of this paragraph (a)(3) of this Section 4.07), to make an offer to the holders Holders of the Securities Notes (and to holders Holders of other Senior Subordinated Indebtedness of the Company designated by the Company) to purchase Securities Notes (and such other 45 Senior Subordinated IndebtednessIndebtedness of the Company) pursuant to and subject to the conditions contained in this IndentureSection 4.07(b); and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A)PROVIDED, (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, howeverHOWEVER, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 4.10(a), the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this covenant except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this covenant exceeds $15.0 million75,000,000. Pending application of Net Available Cash pursuant to this Section 4.07covenant, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce any short-term loans or any revolving credit indebtednessIndebtedness, including, without limitation, under the Credit Agreements, and such temporary reductions shall not result in any permanent reduction in the availability under the revolving portion of such credit facility. For the purposes of this Section 4.10(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
(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.
(b) In the event of an Asset Disposition that requires the purchase of the Securities Notes (and other Senior Subordinated IndebtednessIndebtedness of the Company) pursuant to clause (3)(CSection 4.10(a)(3)(C) of paragraph (a) of Section 4.07above, the Company will purchase Securities Notes tendered pursuant to an offer (the "EXCESS PROCEEDS OFFER") by the Company for the Securities Notes (and such other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), ) without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated IndebtednessIndebtedness of the Company, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) in accordance with the procedures set forth in Section 4.10(c), provided that the procedures for making an offer to holders of other Senior Indebtedness will be as provided for by the terms of such Senior Indebtedness. If the aggregate purchase price of the securities tendered exceeds the Net Available Cash allotted to their purchase, the Company will select the securities to be purchased on a PRO RATA basis but in round denominations, which in the case of the Notes will be denominations of $1,000 principal amount or multiples thereof. the Company shall not be required to make such an offer to purchase Notes (including prorating and other Senior Indebtedness of the Company) pursuant to this Section 4.10(b) if the Net Available Cash available therefor is less than $75,000,000 (which lesser amount shall be carried forward for purposes of determining whether such an offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within five days after the last date by which the Company must have applied Net Available Cash pursuant to Section 4.10(a)(3)(B), the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorationing as hereinafter described in the event the Excess Proceeds Offer is oversubscribed) in integral multiples of oversubscription$1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice and shall contain information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (i) set forth in paragraph the most recently filed Annual Report on Form 10-K (cincluding audited consolidated financial statements) of Sectionthe Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), and (ii) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Notes pursuant to the Excess Proceeds Offer, together with the information contained in clause (2) below.
(2) Not later than the date upon which written notice of an Excess Proceeds Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers' Certificate as to (i) the amount of the Excess Proceeds Offer (the "OFFER AMOUNT"), (ii) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Excess Proceeds Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in immediately available funds an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section 4.10. The amount so deposited, at the option of, and pursuant to the specific written direction of, the Company, may be invested in Temporary Cash Investments, the maturity date of which is not later than the purchase date. The Company shall be entitled to any interest or dividends accrued, earned or paid on such Temporary Cash Investments. Upon the expiration of the period for which the Excess Proceeds Offer remains open (the "OFFER PERIOD"), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the purchase date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes and other Senior Indebtedness delivered by the Company to the Trustee is less than the Offer Amount, the Trustee shall deliver the excess to the Company promptly after the expiration of the Offer Period.
(3) Holders electing to have a Note purchased will be required to surrender the Note, with an appropriate form duly completed, to the Company at the address specified in the notice at least ten Business Days prior to the purchase date. Holders will be entitled to withdraw their election if the Trustee or the Company receives not later than three Business Days prior to the purchase date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Offer Period the aggregate principal amount of Notes surrendered by Holders exceeds the Offer Amount, the Company shall select the Securities to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased). Holders whose Securities are purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(4) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company will also deliver an Officers' Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section 4.10. A Note shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this covenant. To the extent that the provisions of any securities laws or regulations conflict with provisions of this covenant, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this covenant by virtue of its compliance with such securities laws or regulations.
(e) Notwithstanding the foregoing, the Company will be permitted to consummate an Asset Disposition and will not be subject to the provisions of this covenant if a definitive written sale agreement relating to such Asset Disposition was entered into in good faith during a Suspension Period.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless:
(1) the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time (including by way of such Asset Disposition relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (including as such fair market value to be determined on the value date of all non-cash considerationcontractually agreeing to such Asset Disposition), as determined in good faith by the CompanyIssuer, of the 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 (except to the extent the Asset Disposition is a Permitted Asset Swap), with a purchase price in excess of (x) prior to the Conversion Date, $150 million and (y) after the Conversion Date, the greater of $150.0 million and 5.5% of LTM EBITDA, at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents; provided that the amount of (A) any liabilities (as shown on the Company's or such 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market valueDisposition, when taken together with all other Designated Noncash Consideration received pursuant to this clause Asset Dispositions since the Issue Date (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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 valueon a cumulative basis), shall be deemed to be cash for purposes (including by way of this provision and for no relief from, or by any other purpose; and
(3Person assuming responsibility for, any liabilities, contingent or otherwise) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied received by the Company (Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents (which determination may be made by the Issuer, at its option, either (x) on the date of contractually agreeing to such Asset Disposition or (y) at the time the Asset Disposition is completed); and
(3) within 365 days from the later of (A) the 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 as set forth below, the “Proceeds Application Period”), an amount equal to such Net Available Cash is applied, to the extent the Issuer or any Restricted Subsidiary, as the case may be, elects:
(i) (a) to the extent such Net Available Cash are from an Asset Disposition of Collateral (w) to reduce, prepay, repay or purchase any First Lien Obligations, including Indebtedness under the Company elects Credit Agreements or the First Lien Notes (or is required by the terms of any IndebtednessRefinancing Indebtedness in respect thereof), (x) to reduce, prepay, repayrepay or purchase any Second Lien Obligations other than Second Lien Notes Obligations (or any Refinancing Indebtedness in respect thereof); provided that, if the Issuer shall so reduce, repay or repurchase such Second Lien Obligations, the Issuer ratably offer to repurchase Notes (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer or Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Senior Notes through open-market purchases or in privately negotiated transactions, (y) to make an offer (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer or Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, or (z) to reduce, prepay, repay or purchase any Indebtedness or Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary Non-Guarantor (in each case case, other than Indebtedness owed to the Company Issuer or an Affiliate of the Company) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(B) to the extent the Company elects, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(C) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) of this paragraph (a)(3) of this Section 4.07, to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (Aany Restricted Subsidiary), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (A) or (C) of this paragraph (a) of this Section 4.07), the Company Issuer or such Restricted Subsidiary shall permanently will retire such Indebtedness and shall will cause the related loan commitment (if anyother than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to be permanently reduced in an amount equal to the principal amount so reduced, prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this covenant except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this covenant exceeds $15.0 million. Pending application of Net Available Cash pursuant to this Section 4.07, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness.
(b) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) of paragraph (a) of Section 4.07, the Company will purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph (c) of Section;
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make 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 value, as determined in good faith by the Board of Directors (including as to the value of all non-cash consideration), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition;
; (2) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or cash equivalents; provided that Cash Equivalents, Additional Assets (the amount value of (Awhich 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) 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 combination thereof (other than liabilities that are by their terms subordinated to the Securities"Permitted Consideration"); provided, that are assumed by the transferee of any such assets (provided however, that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries shall be permitted to receive Property (the value of which shall be determined conclusively by the Board of Directors acting in good faith, such Asset Disposition having 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, when taken together with as so determined, of all such Property other Designated Noncash than Permitted Consideration received pursuant to this clause (C) from Asset Dispositions and held by the Company and the Restricted Subsidiaries at any one time shall not exceed 10% of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received Adjusted Consolidated Net Tangible Assets; and without giving effect to subsequent changes in value), shall be deemed to be cash for purposes of this provision and for no other purpose; 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 or Indebtedness (other than any Disqualified Preferred Stock) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(B) to the extent the Company elects, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(C) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) of this paragraph (a)(3) of this Section 4.07, to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (A) or (C) of this paragraph (a) of this Section 4.07), the Company or such Restricted Subsidiary shall permanently will retire such Indebtedness and shall will 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 ; provided that, prior to such retirement, the foregoing provisions Company or its Restricted Subsidiaries may temporarily repay Senior Indebtedness with the Net Available Cash; and (B) second, to the extent of this paragraph the balance of such Net Available Cash after application in accordance with clause (a) of this Section 4.07 ), to the extent the Company and or such Restricted Subsidiary elects, 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, prior to such investment, the Company or its Restricted Subsidiaries may temporarily repay Senior Indebtedness with the Net Available Cash.
(b) Any Net Available Cash from Asset Sales that are not applied or invested as provided in Section 3.6(a) will not be deemed to constitute "Excess Proceeds." On the 361st day after the later of the Asset Disposition or the receipt of the Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company will be required to apply make an offer ("Asset Sale Offer") to all holders of Securities and to the extent required by the terms thereof, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any Net Available Cash Asset Disposition ("Pari Passu Securities"), to purchase the maximum principal amount of Securities and any such Pari Passu Securities to which the Asset Sale Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof (or the accreted value of any such Pari Passu Securities, if they were issued at a discount) plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in this covenant Indenture or the agreements governing the Pari Passu Securities, as applicable. To the extent that the aggregate amount of Securities and Pari Passu Securities so validly tendered and not properly withdrawn pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. If the aggregate principal amount of Securities surrendered by Holders thereof and other Pari Passu Securities (or the accreted value of any such Pari Passu Securities, if they were issued at a discount) surrendered by holders or lenders thereof, collectively, exceeds the amount of Excess Proceeds, the Company shall select the Securities and Pari Passu Securities to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Securities and Pari Passu Securities (or the accreted value of any such Pari Passu Securities, if they were issued at a discount). Upon completion of such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(1) The Asset Sale Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the aggregate Net Available Cash from all "Asset Dispositions which is not applied in accordance with this covenant exceeds $15.0 millionSale Offer Period"). Pending application of Net Available Cash pursuant to this Section 4.07, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness.
(b) In No later than five Business Days after the event of an Asset Disposition that requires the purchase termination of the Securities Asset Sale Offer Period (and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) of paragraph (a) of Section 4.07the "Asset Sale Purchase Date"), the Company will purchase the principal amount of Securities tendered and Pari Passu Securities required to be purchased pursuant to this covenant (the "Asset Sale Offer Amount") or, if less than the Asset Sale Offer Amount has been so validly tendered, all Securities and Pari Passu Securities validly tendered in response to the Asset Sale Offer.
(2) If the Asset Sale Purchase Date is on or after an offer interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the Person in whose name a Security is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Securities pursuant to the Asset Sale Offer.
(3) On or before the Asset Sale Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Sale Offer Amount of Securities and Pari Passu Securities or portions thereof so validly tendered and not properly withdrawn pursuant to the Asset Sale Offer, or if less than the Asset Sale Offer Amount has been validly tendered and not properly withdrawn, all Securities and Pari Passu Securities so validly tendered and not properly withdrawn. The Company will deliver to the Trustee an Officers' Certificate stating that such Securities or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 3.6 and, in addition, the Company will deliver all certificates and Securities required, if any, by the agreements governing the Pari Passu Securities. The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Sale Offer Period) mail or deliver to each tendering Holder of Securities or holder or lender of Pari Passu Securities, as the case may be, an amount equal to the purchase price of the Securities or Pari Passu Securities so validly tendered and not properly withdrawn by such Holder or lender, as the case may be, and accepted by the Company for purchase, and the Securities (Company will promptly issue a new Security, and the Trustee, upon delivery of an Officers' Certificate from the Company will authenticate and mail or deliver such other Senior Subordinated Indebtedness) (the "Offer") at new Security to such Holder, in a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% equal to any unpurchased portion of the accreted value Security surrendered. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Securities. Any Security not so accepted will be promptly mailed or delivered by the Company to the Holder thereof). The Company will publicly announce the results of the Asset Sale Offer on the Asset Sale Purchase Date. For the purposes of Section 3.6, the following will be deemed to be cash:
(1) the assumption by the transferee of Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the Company or Indebtedness (other than Preferred Stock) 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 case the Company will, without premiumfurther action, plus accrued but unpaid interest (or, in respect of be deemed 66 to have applied such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) deemed cash to Indebtedness in accordance with Section 3.6(a)(3)(A) above); and
(2) securities, notes or other obligations received by the procedures Company or any Restricted Subsidiary of the Company from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(including prorating in d) The Company will comply, to the event extent applicable, with the requirements of oversubscription) set forth in paragraph (cSection 14(e) of Sectionthe Exchange Act and any other securities laws or regulations in connection with the repurchase of Securities pursuant to this Indenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 3.6, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue thereof.
Appears in 1 contract
Samples: Indenture (Triton Energy LTD)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless:
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 value, as determined in good faith by the Company's senior management or the Board of Directors (including as to the value of all non-cash consideration), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition;
, (2ii) 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; provided that the amount of (A) 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 equivalents and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for purposes of this provision and for no other purpose; 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 or (y) Indebtedness (other than any Disqualified Preferred Stock) of a Restricted Wholly-Owned Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year 180 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
; (B) to the extent the Company electssecond, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or 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 investment in or acquisition of Additional Assets or (y) to 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 Company); and (C) third, within 45 days after the later of the application of Net Available Cash in accordance with clauses (A) and (B) and 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) and (B) of this paragraph (a)(3) of this Section 4.07), 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 Securities tendered principal amount thereof (and to holders or 100% of the accreted value of such other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and so tendered, if such other Senior Subordinated IndebtednessIndebtedness was issued at a discount) pursuant to plus accrued and subject unpaid interest, if any, thereon to the conditions contained in this Indenture; and
(D) to the extent date of the purchase. The balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of may be used by the Company in any manner not otherwise prohibited under this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant Indenture or the 1997 Indenture. Notwithstanding anything herein to the terms of this Indenture; providedcontrary, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A), (B) or (C) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 provisions, the Company and the its Restricted Subsidiaries will shall not be required to apply any Net Available Cash in accordance with this covenant herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions since the 1997 Security Issue Date which is are not applied in accordance with this covenant exceeds Section 4.6 at any time exceed $15.0 15 million. Pending application of Net Available Cash The Company shall not be required to make an offer for Securities or 1997 Securities pursuant to this Section 4.07, such 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 invested 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 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 Temporary Cash Investments 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 or applied 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 shall be permitted to temporarily reduce revolving credit indebtednessconsummate an Asset Swap if (i) 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 (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 Company or such Restricted Subsidiary, as the case may be, from a financial point of view.
(b) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) pursuant to clause (3)(CSection 4.6(a)(iii)(C) of paragraph (a) of Section 4.07and/or the 1997 Securities pursuant to the 1997 Indenture, the Company will be required to purchase Securities and/or the 1997 Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) and/or the 1997 Securities (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but and unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser priceinterest, if any, as may be provided for by to the terms of such Senior Subordinated Indebtedness) purchase date in accordance with the procedures (including prorating in the event of oversubscriptionoversubscription as well as proration required as a result of tenders of other Senior Subordinated Indebtedness) set forth in paragraph Section 4.6(c) and the 1997 Indenture. If the aggregate purchase price of the Securities and/or the 1997 Securities tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of the Securities, the Company may use the remaining Net Available Cash for any purpose not prohibited by this Indenture and the 1997 Indenture. Upon the consummation of the purchase of Securities and/or 1997 Securities properly tendered in response to such offer to purchase, the amount of Net Available Cash subject to future offers to purchase shall be deemed to be reset to zero.
(c1) Promptly, and in any event within 10 days after the Company is required to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as hereinafter described in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date").
(2) Not later than the date upon which such written notice of an Offer is delivered to the Trustee and the Holders, the Company shall deliver to the Trustee an Officers' Certificate setting forth (i) the amount of the Offer (the "Offer Amount"), (ii) the allocation of the Net Available Cash from the Asset Dispositions as a result of which such Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.6(a). Upon the expiration of the period (the "Offer Period") for which the Offer remains open, the 52 46 Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price of the Securities tendered by such Holder to the extent such funds are available to the Trustee.
(3) Holders electing to have a Security purchased will be required to surrender the Security, with an appropriate form duly completed, to the Company at the address specified in the notice prior to the expiration of the Offer Period. Each Holder will be entitled to withdraw its election if the Trustee or the Company receives, not later than one Business Day prior to the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter from such Holder setting forth the name of such Holder, the principal amount of the Security or Securities which were delivered for purchase by such Holder and a statement that such Holder is withdrawing his election to have such Security or Securities purchased. If at the expiration of the Offer Period the aggregate principal amount of Securities surrendered by Holders exceeds the Offer Amount, the Company shall select the Securities to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Securities in denominations of $1,000, or integral multiples thereof, shall be purchased). Holders whose Securities are purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(d) The Company will comply, to the extent applicable, with the requirements of Section 14(e) of Sectionthe Exchange Act and any other securities laws or regulations in connection with the repurchase of Securities pursuant to this Section 4.6. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.6, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue thereof.
Appears in 1 contract
Samples: Indenture (Viasystems Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition Sale unless:
(1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition Sale at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Company, ) of the shares and assets subject to such Asset Disposition;
Sale (2which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions) involving in excess of $1,000,000) and at least 75% of the consideration thereof received therefor by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents; provided that the amount of (A) any liabilities (as shown on the Company's or such 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary Cash Equivalents and is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for purposes of this provision and for no other purpose; such sale and
(3ii) an amount equal to 100% of the Net Available Cash from such Asset Disposition Sale 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 or purchase Senior Indebtedness or and, in the case of any Senior Indebtedness (other than under any Disqualified Stock) of revolving credit facility, effect a Restricted Subsidiary (permanent reduction in each case other than Indebtedness owed to the Company or an Affiliate of the Company) availability under such revolving credit facility, within one year 180 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;Sale and
(B) to the extent the Company electssecond, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(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, and within 180 days from the date of such Asset Sale, to:
(1) make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or
(2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock; PROVIDED that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business.
(b) Any Net Available Cash not applied within 180 days after the consummation of an Asset Sale as provided in clauses (A) and or (B) of this paragraph (a)(3a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of this Section 4.07Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer to all Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis the holders principal amount of Notes equal in amount to the Securities Excess Proceeds (and to holders of other Senior Subordinated Indebtedness designated by not just the Companyamount thereof that exceeds $5.0 million) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A"Asset Sale Offer Amount"), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that at a purchase price in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.07, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon to the date of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture, and in accordance with the following standards:
(i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so prepaidthat only Notes in denominations of $1,000 or integral multiples thereof shall be purchased.
(ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, repaid or purchased. Notwithstanding the foregoing Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this paragraph (a) Indenture). Upon completion of this Section 4.07 an Asset Sale Offer, the Company and the Restricted Subsidiaries will not be amount of Excess Proceeds then required to apply any Net Available Cash in accordance with this covenant except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not be otherwise applied in accordance with this covenant exceeds $15.0 million. Pending application of Net Available Cash pursuant to this Section 4.07, such Net Available Cash shall be invested in Temporary Cash Investments or applied reset to temporarily reduce revolving credit indebtednesszero, subject to any subsequent Asset Sale.
(bc) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Disposition that requires Sale. In addition, the purchase fair market value of such properties and assets of the Securities Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant.
(d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and other Senior Subordinated Indebtednessthe Net Available Cash thereof shall be applied in accordance with this covenant.
(e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating:
(i) that an Asset Sale Offer is being made pursuant to clause this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer;
(3)(Cii) the Asset Sale Offer Amount, the amount of paragraph Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (athe "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed;
(iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest;
(iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date;
(v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date;
(vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer;
(vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof;
(viii) if Certificated Notes have been issued hereof, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof;
(ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and
(x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.074.11.
(f) On the Asset Sale Payment Date, the Company will shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase Securities tendered pursuant to an offer the Asset Sale Offer and Section 4.11(e) hereof; (ii) irrevocably deposit with the Paying Agent, by the Company for the Securities (and 10:00 a.m., New York City time, on such other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (ordate, in immediately available funds, an amount equal to the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such other Senior Subordinated IndebtednessNotes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.
(g) Upon surrender and cancellation of a Certificated Note that is purchased in part, the Company shall promptly issue and the Trustee shall authenticate and deliver to the surrendering Holder of such lesser priceCertificated Note, if anya new Certificated Note equal in principal amount to the unpurchased portion of such surrendered Certificated Note; PROVIDED that each such new Certificated Note shall be in a principal amount of $1,000 or an integral multiple thereof.
(h) Upon surrender of a Global Note that is purchased in part, the Paying Agent shall forward such Global Note to the Trustee who shall make a notation on Schedule A thereof to reduce the principal amount of such Global Note, as may be provided for by in Section 2.05(c) hereof.
(i) The Company shall comply, to the terms of such Senior Subordinated Indebtedness) in accordance extent applicable, with the procedures (including prorating in the event requirements of oversubscription) set forth in paragraph (cSection 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.11. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.11 by virtue thereof.
Appears in 1 contract
Samples: Indenture (Galey & Lord Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and 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 (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 (including as to the value of all non-cash consideration), as determined in good faith by the Company, Fair Market Value of the shares and assets subject to such Asset Disposition;,
(2ii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash cash, assets useful in a Permitted Business or cash equivalentsPermitted Securities; provided that the amount of (A) 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market valueshall be deemed cash for the purposes of this provision (but for no other purpose) so long as such amount, when taken together with the Fair Market Value when received of all other Designated Noncash Non-Cash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstandingoutstanding (i.e., that has not to been sold for or otherwise converted into cash), does not exceed $5.0 million at time of 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)25,000,000, shall be deemed to be cash for purposes of this provision and for no other purpose; 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 360 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 otherwise acquire for value Senior Indebtedness of the Company, Senior Indebtedness of a Subsidiary Guarantor or Indebtedness (other than any Disqualified Stock) of a 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 one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash);
(B2) 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 acquire reinvest in Additional Assets within one year from the later (including by means of the date of such Asset Disposition or the receipt of such an Investment in Additional Assets by a Restricted Subsidiary with Net Available CashCash received by the Company or another Restricted Subsidiary);
(C3) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A1) and (B) of this paragraph (a)(3) of this Section 4.072), to make an offer to the holders of the Securities Offer (and to holders of other Senior Subordinated Indebtedness designated by the Companyas defined in Section 3.09(b)) to purchase Securities (and such other Senior Subordinated Indebtedness) Notes pursuant to and subject to the conditions contained in this Indentureof Section 3.09(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 (determined based upon the respective principal amounts of the Notes and such other Senior Subordinated Indebtedness being purchased or repaid) to purchase the Notes and to purchase or otherwise repay such other Senior Subordinated Indebtedness of the Company, and
(D4) fourth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A1), (B2) and (C) of this paragraph (a) of this Section 4.073), for any general corporate purpose permitted pursuant to not prohibited by the terms of this Indenture; provided, however, however that in connection with any prepayment, repayment repayment, purchase, repurchase, redemption, retirement, defeasance or purchase other acquisition for value of Indebtedness pursuant to clause (A1) or (C3) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid repaid, purchased, repurchased, redeemed, retired, defeased or purchasedotherwise acquired for value. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 3.09, the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this covenant Section 3.09 except to the extent that the aggregate Net Available Cash from all Asset Dispositions which that is not applied in accordance with this covenant Section 3.09 exceeds $15.0 million25,000,000. Pending application For the purposes of Net Available Cash pursuant to this Section 4.073.09, the following are deemed to be cash:
(A) the assumption 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 and Preferred Stock of a Subsidiary Guarantor) and the release of the Company or such Net Available Cash shall be invested Restricted Subsidiary from all liability on such Indebtedness in Temporary Cash Investments connection with such Asset Disposition and
(B) securities received by the Company or applied to temporarily reduce revolving credit indebtednessany Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) Notes pursuant to clause (3)(C) of paragraph (a) of Section 4.073.09(a)(iii)(3), the Company will be required (i) to purchase Securities Notes tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) Notes (the "“Offer"”) at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but and unpaid interest thereon to the date of purchase (or, in respect subject to the right of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by Holders of record on the terms of such Senior Subordinated Indebtednessrelevant date to receive interest due on the relevant interest payment date) in accordance with the procedures (procedures, including prorating in the event of oversubscription) , set forth in paragraph this Indenture and (ii) to purchase or otherwise repay other Senior Subordinated Indebtedness of the Company on the terms and to the extent contemplated thereby at the purchase price set forth in the relevant documentation (including accrued and unpaid interest to the date of acquisition, the “purchase price”), provided that to the extent the purchase price of any such Senior Subordinated Indebtedness exceeds 100% of the principal amount thereof, plus accrued and unpaid interest thereon to the date of acquisition, the Company shall not use any Net Available Cash to pay such purchase price, except as permitted by the next sentence. If the aggregate purchase price of Notes (and other Senior Subordinated Indebtedness) tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of the Notes (and other Senior Subordinated Indebtedness), the Company shall apply the remaining Net Available Cash in accordance with Section 3.09(a)(iii)(4). The Company shall not be required to make an Offer for Notes (and other Senior Subordinated Indebtedness) pursuant to this Section 3.09 if the Net Available Cash available therefor (after application of the proceeds as provided in clauses (1) and (2) of Section 3.09(a)(iii)) is less than $25,000,000 for any particular Asset Disposition (which lesser amount will be carried forward for purposes of determining whether an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(c) (i) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall be obligated to deliver to the Trustee and send or, at the request of Sectionthe Company have the Trustee send, in the name and on behalf of the Company, by first-class mail to each Holder, a written notice stating that the Holder may elect to have its Notes purchased by the Company either in whole or in part (subject to prorating as hereinafter described in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the “Purchase Date”) and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum shall include (1) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports); provided that in lieu of providing the reports specified in this subclause (1), the Company may, at its option, notify the holders that such reports are available to them in electronic format through the SEC’s XXXXX system, (2) a description of material developments in the Company’s business subsequent to the date of the latest of such reports, and (3) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Notes pursuant to the Offer, together with the address referred to in clause (iii).
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, consummate 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 (including as to the value of all non-cash consideration), as determined in good faith by the Company, Fair Market Value of the shares and assets subject to such Asset Disposition;,
(2) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash cash, assets useful in a Permitted Business, or cash equivalents; provided that the amount assumption by the purchaser of (A) 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 Securities), that Notes) as a result of which the Company and the Restricted Subsidiaries are assumed by the transferee of any such assets (no longer obligated with respect to those liabilities; provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent amount of the cash received) within 180 days following the closing of such Asset Disposition and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for the purposes of this provision and (but for no other purpose) so long as such amount, taken together with the Fair Market Value when received of all other Designated Noncash Consideration that is at that time outstanding (i.e., that has not been sold for or otherwise converted into cash or Permitted Securities), does not exceed the greater of (i) $150,000,000 and (ii) 6% of Consolidated Tangible Assets as of the last day of the most recent fiscal quarter; provided, further, that (A) securities or other assets 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 the closing of such Asset Disposition shall be considered to be cash to the extent of the cash received in that conversion; and (B) any cash consideration paid to the Company or the Restricted Subsidiary in connection with the Asset Disposition that is held in escrow or on deposit to support indemnification, adjustment of purchase price or similar obligations in respect of such Asset Disposition shall be considered to be 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)) within 365 days after the later of the date of such Asset Disposition and the receipt of such Net Available Cash:
(A) 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 Secured Indebtedness of the Company or Indebtedness a Subsidiary Guarantor (other than any Disqualified StockStock or Subordinated Obligations) or Indebtedness of a 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 one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(B) to the extent 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 electsor another Restricted Subsidiary); provided, that a binding commitment to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such apply Net Available Cash;
Cash in accordance with this clause (CB) to the extent of the balance shall be treated as an application of such Net Available Cash after application from the date of such commitment if (i) such reinvestment is consummated within 180 days at the end of such 365 day period referred to in accordance with clauses this clause (A3) and (Bii) if such reinvestment is not consummated within the period set forth in subclause (i) or such binding commitment is terminated, the Net Available Cash shall constitute available Net Available Cash; or
(C) (i) to redeem the Notes of this paragraph either series or make open market purchases thereof at a price not less than 100% of the principal amount thereof or (a)(3ii) of this Section 4.07, to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) Asset Disposition Offer to purchase Securities (and Notes of such other Senior Subordinated Indebtedness) series pursuant to and subject to the conditions contained set forth in Section 4.10(b); provided, however, that if the Company elects (or is required by the terms of any Pari Passu Indebtedness), such Asset Disposition Offer may be made ratably (determined based upon the respective principal amounts of the Notes of such series and such Pari Passu Indebtedness being purchased or repaid) to purchase the Notes of such series and to purchase or otherwise repay such Pari Passu Indebtedness; provided that pending final application of any such Net Available Cash in accordance with clause (3)(A), (B) or (C) above, the Company and the Restricted Subsidiaries may temporarily reduce revolving Indebtedness outstanding under the Existing Credit Agreement or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture; and
(D) to . To the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary, as the case may be, may use such balance for any general corporate purpose permitted pursuant to not prohibited by the terms of this Indenture; provided, however, that in . In connection with any prepayment, repayment repayment, purchase, repurchase, redemption, retirement, defeasance or purchase other acquisition for value of Indebtedness pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently Subsidiary, as the case may be, will retire such Indebtedness and shall will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid repaid, purchased, repurchased, redeemed, retired, defeased or purchasedotherwise acquired for value. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 4.10, the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this covenant except to the extent that the aggregate Net Available Cash from all Asset Dispositions which that is not applied in accordance with this covenant exceeds $15.0 million. Pending application of Net Available Cash pursuant to this Section 4.07, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness100,000,000.
(b) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) Notes of either series pursuant to clause (3)(C) of paragraph (a) of Section 4.074.10(a)(3)(C), the Company will be required
(i) to purchase Securities Notes of such series tendered pursuant to an offer by the Company for the Securities (and Notes of such other Senior Subordinated Indebtedness) series (the "“Asset Disposition Offer"”) at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but and unpaid interest thereon to the date of purchase (or, in respect subject to the right of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by Holders of record on the terms of such Senior Subordinated Indebtednessrelevant date to receive interest due on the relevant Interest Payment Date) in accordance with the procedures (procedures, including prorating in the event of oversubscription) , set forth in paragraph this Indenture, and
(ii) to purchase or otherwise repay Pari Passu Indebtedness of the Company on the terms and to the extent contemplated thereby at the purchase price set forth in the relevant documentation (including accrued and unpaid interest to the date of acquisition, the “purchase price”), provided that to the extent the purchase price of any such Pari Passu Indebtedness exceeds 100% of the principal amount thereof, plus accrued and unpaid interest thereon to the date of acquisition, the Company shall not use any Net Available Cash to pay such purchase price, except as permitted by the next sentence. If the aggregate purchase price of Notes of either series and Pari Passu Indebtedness tendered pursuant to the Asset Disposition Offer is less than the Net Available Cash allotted to the purchase of the Notes of such series and Pari Passu Indebtedness, the Company will apply the remaining Net Available Cash for any general corporate purpose not prohibited by the terms of this Indenture. The Company will not be required to make an Asset Disposition Offer for Notes of either series and Pari Passu Indebtedness pursuant to this Section 4.10 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 4.10(a)(3)(A) and (B)) is less than $100,000,000 for any particular Asset Disposition (which lesser amount will be carried forward for purposes of determining whether an Asset Disposition Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon consummation of any Asset Disposition Offer, the Net Available Cash in respect of any Asset Disposition(s) shall be reduced to zero.
(c) (i) Promptly, and in any event within 20 days after the Company becomes obligated to make an Asset Disposition Offer, the Company shall be obligated to deliver to the Trustee and send or, at the request of Sectionthe Company have the Trustee send (such notice to be provided to the Trustee at least five Business Days before the Trustee is requested to send such notice unless a shorter period shall be satisfactory to the Trustee), in the name and on behalf of the Company, by first-class mail to each Holder, or in the case of Global Notes, send in accordance with the Applicable Procedures of the Depositary, a written notice stating that the Holder may elect to have its Notes of either series purchased by the Company either in whole or in part (subject to prorating as hereinafter described in the event the Asset Disposition Offer is oversubscribed) in minimum denominations of $2,000 of principal amount or any greater integral multiple of $1,000 thereof, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the “Purchase Date”) and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum shall include (1) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports); provided that in lieu of providing the reports specified in this subclause (1), the Company may, at its option, notify the holders that such reports are available to them in electronic format through the SEC’s XXXXX system, (2) a description of material developments in the Company’s business subsequent to the date of the latest of such reports, and (3) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Notes pursuant to the Asset Disposition Offer, together with the address referred to in clause (iii).
Appears in 1 contract
Samples: Indenture (Qorvo, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless:
(1) unless the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the CompanyBoard of Directors, of the shares and assets subject to such Asset Disposition;
(2) 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; provided that . For the amount purposes of this Section 10.13, the following are deemed to be cash or cash equivalents: (Ax) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) assumption of Indebtedness of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto)Subsidiary, (By) any notes, other obligations or securities received by the Company or such any Restricted Subsidiary from such the 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 after receipt thereof and (Cz) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition Sale having an aggregate fair market value, when 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 (Ci) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of receipt of within 360 days after the date 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), shall be deemed to be cash for purposes of this provision and for no other purpose; 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) 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 Indebtedness Credit Agreements or Indebtedness (other than any Disqualified Stock) of secured by a Restricted Subsidiary (Permitted Lien, in each case owing to a Person other than Indebtedness owed to the Company or an any Affiliate of the Company) within one year from the later of the date of such Asset Disposition , or the receipt of such Net Available Cash;
(B) to the extent the Company electsinvest an equal amount, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(C) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) of this paragraph (a)(3) of this Section 4.07, to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) amount not so applied pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses clause (A), in Additional Assets (Bincluding 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 (Cii) of this paragraph apply such excess Net Available Cash (ato the extent not applied pursuant to clause (i)) as provided in the following paragraphs of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture10.13; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions The amount of this paragraph (a) of this Section 4.07 the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this covenant except required to the extent that the aggregate Net Available Cash from all Asset Dispositions which is be applied pursuant to clause (ii) above and not theretofore so applied in accordance with this covenant exceeds $15.0 million. shall constitute "Excess Proceeds." Pending application of Net Available Cash pursuant to this Section 4.07provision, 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 the 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
(b) In Unless the event of an Asset Disposition that requires Company shall have theretofore called for redemption all the purchase of the Securities (and other Senior Subordinated Indebtedness) outstanding Notes pursuant to clause (3)(C) of paragraph (a) of Section 4.07Article Eleven hereof, on or before the 30th day after its becomes obligated to make an Excess Proceeds Offer, the Company will purchase Securities tendered pursuant or, at the written request of the Company, the Trustee, shall be obligated to an offer mail to each Holder (and the Trustee, if applicable) at the address appearing on the Note Register, a written notice as prepared by the Company for stating that the Securities Holder may elect to have his Notes purchased by the Company either in whole or in part (and subject to prorationing as hereinafter described in the event the Excess Proceeds Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price on a date that is 60 days after the date of such other Senior Subordinated Indebtedness) notice (the "OfferPurchase Date") at ). The Company shall also deliver a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect copy of such other Senior Subordinated Indebtednessnotice of Excess Proceeds Offer to the Trustee.
(c) Each notice, such lesser price, if any, as may be provided for by which shall govern the terms of the Excess Proceeds Offer, shall state:
(i) that an Excess Proceeds Offer is being made and that such Senior Subordinated IndebtednessHolder has the right to require the Company to purchase such Notes on the Purchase Date pursuant to this Section 10.13;
(ii) in accordance with the date by which the purchase right must be exercised;
(iii) the price at which such Notes will be purchased pursuant to the Excess Proceeds Offer; (iv) a description of the procedures (including prorating that a Holder must follow in the event of oversubscription) set forth in paragraph (c) of Sectionorder to tender their Notes pursuant to such Excess Proceeds Offer;
Appears in 1 contract
Samples: Indenture (Signature Resorts Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless:
(1i) the The Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value value, as determined in good faith by the Company (including as to the value of all non-cash consideration), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition;
(2) Disposition and at least 75% of the consideration thereof received received, together with all other Asset Dispositions since the Existing Notes Issue Date (on a cumulative basis), by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, however, that in the case of an Asset Disposition (x) involving the disposition of non-core assets (as determined by the Company in its good faith judgment) acquired as part of any acquisition after the Issue Date or (y) for aggregate consideration of less than $100.0 million, only 50% of the consideration therefor must be in the form of cash equivalentsor Cash Equivalents; provided that the amount of further that:
(A) 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any promissory notes, securities or other obligations or securities amounts received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 360 days of the receipt thereof (to the extent of the cash received) within 180 days following the closing shall be deemed to be cash solely for purposes of such Asset Disposition and this Section 10.16(a)(i), and
(CB) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market valueFair Market Value, when taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (CSection 10.16(a)(i)(B) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed the greater of (x) $5.0 150.0 million and (y) 6.0% of Consolidated Tangible Assets at the time of receipt of such Designated Noncash Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), ) shall be deemed to be cash solely for purposes of this provision and for no other purpose; andSection 10.16(a)(i);
(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), at its option except as described below:
(A) (x) to the extent the Company elects (or is required by the terms of any IndebtednessSenior Indebtedness or any Indebtedness of any non-Guarantor Subsidiary), to prepay, repay, redeem repay or purchase Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary of the Company within 365 days of such Asset Disposition, (other than any Disqualified Stocky) of a at the Company’s election to the investment by the Company or such Restricted Subsidiary in assets to replace the assets that were the subject of such Asset Disposition or assets that (as determined in good faith by the Company) are directly related to the business of the Company and the Restricted Subsidiaries existing on the Issue Date, in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year 365 days from the later of the date of such Asset Disposition Disposition, or (z) a combination of the receipt of foregoing purposes within such Net Available Cash365-day period;
(B) 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 any other Senior Indebtedness or Indebtedness of a non-Guarantor Subsidiary designated by the Company, at a price no greater than par) plus accrued and unpaid interest, which offer can be made at the Company’s election at any time during the 365-day period set forth in Section 10.16(a)(ii)(A) or within one year from the later of the date of 10 Business Days after such Asset Disposition or the receipt of such Net Available Cash;period, and
(C) to the extent of the balance of such Net Available Cash after application in accordance with clauses (ASections 10.16(a)(ii)(A) and (B) of this paragraph (a)(3) of this Section 4.07, to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A10.16(a)(ii)(B), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose purposes otherwise permitted pursuant to the terms of under this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (ASections 10.16(a)(ii)(A) or (C) of this paragraph (a) of this Section 4.07and 10.16(a)(ii)(B), the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 10.16, the Company and the its Restricted Subsidiaries will shall not be required to apply any Net Available Cash in accordance with this covenant Section 10.16 except to the extent that the aggregate Net Available Cash from all Asset Dispositions (including any Asset Dispositions made since the Issue Date) which is are not applied in accordance with this covenant Section 10.16 exceeds $15.0 50.0 million. Pending application For the purposes of Net Available Cash pursuant to this Section 4.0710.16, 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 or to any Subordinated Obligation) of the Company or any Restricted Subsidiary and for which the Company or such Net Available Cash shall be invested Restricted Subsidiary has been validly released by all creditors in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtednesswriting.
(b) In the event of an Asset Disposition that requires results in an offer to purchase the purchase of the Securities Notes (and other Senior Subordinated IndebtednessIndebtedness or Indebtedness of any non-Guarantor Subsidiary) pursuant to clause (3)(C) of paragraph (a) of Section 4.0710.16(a)(ii)(B), the Company will or such Restricted Subsidiary shall purchase Securities Notes tendered pursuant to an offer by the Company for the Securities Notes (and such and, to the extent required, other Senior Subordinated Indebtedness) (the "Offer"Indebtedness of any non-Guarantor Subsidiary) at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, ) plus accrued but unpaid interest (or, in respect of such other Senior Subordinated IndebtednessIndebtedness or Indebtedness of any non-Guarantor Subsidiary, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated IndebtednessIndebtedness or Indebtedness of any non-Guarantor Subsidiary, as applicable) in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph this Indenture which shall include, among other things, that the offer shall remain open for 20 Business Days following its commencement. If the aggregate purchase price of Notes (and, to the extent required, any other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary) tendered pursuant to such offer is less than the Net Available Cash allotted to the purchase thereof, the Company shall be entitled to apply the remaining Net Available Cash in accordance with Section 10.16(a)(ii)(A) or (C). The Company shall not be required to make such an offer to purchase Notes (and other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary) pursuant to this Section 10.16 if the Net Available Cash available therefor is less than $50.0 million (which lesser amount shall be carried forward for purposes of determining whether such an offer is required with respect to any subsequent Asset Disposition). The Company shall not be required to make such an offer to purchase Notes (and other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary) pursuant to this Section 10.16 if a third party (including any of the Company’s Restricted Subsidiaries) makes the offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to such an offer by the Company and purchases all Notes validly tendered and not withdrawn under such offer. Upon completion of any such offer by the Company for Notes, the amount of Net Available Cash related to such Asset Disposition shall be reset to zero, and during the pendency of an offer by the Company for Notes being effected in advance of being required to do so by this Indenture, the amount of Net Available Cash the Company is offering to apply in such offer shall be excluded in subsequent calculations of Net Available Cash in respect of subsequent Asset Dispositions. Pending the final application of any Net Available Cash pursuant to Section 10.16(a)(ii), the Company or the applicable Restricted Subsidiary may apply such Net Available Cash temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Available Cash in Cash Equivalents or Investment Grade Securities.
(c) The Company shall comply, to the extent applicable, with the requirements of SectionSection 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 10.16. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 10.16, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 10.16(c) by virtue thereof.
Appears in 1 contract
Samples: Indenture (Terex Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will 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 value, as determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a resolution of the Board of Directors (including as to the value of all non-cash noncash consideration), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition;
(2ii) at least 7580% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash; PROVIDED, HOWEVER, that in respect of an Asset Disposition, more than 20% of the consideration may consist of consideration other than cash or cash equivalents; provided that the amount of equivalents if (A) any liabilities (as shown on the portion of such consideration that does not consist of cash or cash equivalents consists of assets of a type ordinarily used in the operation of the Company's or distribution business (including Capital Stock of a Person that becomes a Restricted Subsidiary and that holds such Restricted Subsidiary's most recent balance sheet or in the notes theretoassets) of to be used by the Company or any a Restricted Subsidiary (other than liabilities that are by their terms subordinated to in the Securities), that are assumed by conduct of the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto)Company's business, (B) any notesthe terms of such Asset Disposition have been approved by a majority of the members of the Board of Directors having no personal stake in such transaction, other obligations or securities received and (C) if the value of the assets being disposed of by the Company or such Restricted Subsidiary from in such transferee that are converted transaction (as determined in good faith by such members of the Company or such Restricted Subsidiary into cash (Board of Directors) is at least $15 million, the Board of Directors has received a written opinion of a nationally recognized investment banking firm to the extent of the cash received) within 180 days following the closing of effect that such Asset Disposition and (C) any Designated Noncash Consideration received by is fair, from a financial point of view, to the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of receipt and the Company has delivered a copy of such Designated Noncash Consideration (with opinion to 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), shall be deemed to be cash for purposes of this provision and for no other purposeTrustee; 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 or Indebtedness (other than any Disqualified Preferred Stock) of a Restricted Subsidiary Wholly Owned 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 one year from 360 days after 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 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 another Restricted Subsidiary) within one year 360 days 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 in accordance with clauses (A) and (B) of this paragraph (a)(3) of this Section 4.07), to make an offer to the holders of the Securities Offer (and to holders of other Senior Subordinated Indebtedness designated by the Companyas defined below) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained set forth in section (b) of this Indenture; and
Section, and (D) FOURTH, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph ), to fund (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms extent consistent with any other applicable provision of this Indenture) any corporate purpose; providedPROVIDED, howeverHOWEVER, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 Section, the Company and the Restricted Subsidiaries will shall not be required to apply any Net Available Cash in accordance with this covenant Section except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is are not applied in accordance with this covenant exceeds Section exceed $15.0 million500,000. Pending application For the purposes of Net Available Cash pursuant Section 4.06(a)(ii), the following are deemed to this Section 4.07, 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 Net Available Cash shall be invested 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 indebtednessany Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) pursuant to clause Section (3)(C) of paragraph (a) of Section 4.07a)(iii)(C), the Company will shall be required to purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect to the date of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) purchase in accordance with the procedures (including prorating prorationing in the event of oversubscription) set forth in paragraph Section 4.06(c). If the aggregate purchase price of Securities tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of the Securities, the Company shall apply the remaining Net Available Cash in accordance with Section 4.06(a)(iii)(D). The Company shall not be required to make an Offer for Securities pursuant to this Section if the Net Available Cash available therefor (cafter application of the proceeds as provided in clauses (A) and (B) of Section 4.06(a)(iii)) is less than $5 million (which lesser amount shall be carried forward for purposes of determining whether an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorationing as hereinafter described in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes shall enable such Holders to make an informed decision (which at a minimum shall include (i) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (ii) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (iii) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers' Certificate as to (i) the amount of the Offer (the "Offer Amount"), (ii) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.06(a). On such date, the Company shall also irrevocably deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust) in Temporary Cash Investments an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancelation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Security purchased. If at the expiration of the Offer Period the aggregate principal amount of Securities surrendered by Holders exceeds the Offer Amount, the Company shall select the Securities to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Securities in denominations of $1,000, or integral multiples thereof, shall be purchased). Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue thereof.
(e) The Company shall not, and shall not permit any Restricted Subsidiary to, make any Financing Disposition in connection with a Receivables Financing unless the Board of Directors shall have determined in good faith, which determination shall be conclusive and evidenced by a resolution of the Board of Directors, that such Financing Disposition is made at fair market value.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless:
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 value, as determined in good faith by the Company's senior management or the Board of Directors (including as to the value of all non-cash consideration), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition;
; (2ii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents; provided that the amount of (A) any liabilities (as shown on the Company's or such 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for purposes of this provision and for no other purpose; 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 or Guarantor Senior Indebtedness or (other than any Disqualified Stocky) Indebtedness of a Restricted Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year 180 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
; (B) to the extent the Company electssecond, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(C) , 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 investment in or acquisition of Additional Assets or (y) to 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 Company); (C) third, within 45 days after the later of the application of Net Available Cash in accordance with clauses (A) and (B) and the date that is one year from the receipt of this paragraph such Net Available Cash, to the extent of the balance of such Net Available Cash after application and in accordance with clauses (a)(3A) of this Section 4.07and (B), to make an offer to purchase the holders Original 11 3/4% Notes at par plus accrued and unpaid interest, if any, thereon in accordance with the provisions of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Original 11 3/4% Notes Indenture; and
and (D) fourth, within 45 days of the later of the application of Net Available Cash in accordance with clauses (A), (B) and (C) and 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 (C), to make an offer to purchase the 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 this paragraph (a) of this Section 4.07such Net Available Cash, for any general corporate purpose permitted pursuant to the terms 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 that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause clauses (A), (B), (C), (D), (E) or (CF) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 provisions, the Company and the Restricted its Subsidiaries will shall not be required to apply any Net Available Cash in accordance with this covenant herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is are not applied in accordance with this covenant exceeds at any time exceed $15.0 10.0 million. Pending application of The Company shall not be required to make an offer for Securities pursuant to this covenant if the Net Available Cash pursuant 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 this Section 4.07, such the Net Available Cash shall from any subsequent Asset Disposition). For the purposes of this covenant, the following will be invested deemed to be cash: (x) the assumption by the transferee of Senior Indebtedness of the Company 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 Temporary Cash Investments 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 or applied to temporarily reduce revolving credit indebtednessany Subsidiary from the transferee that are promptly converted by the Company or such Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) of paragraph (a) of Section 4.074.6(a)(iii)(E), the Company will be required to purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but and unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser priceinterest, if any, as may be provided for by to the terms of such Senior Subordinated Indebtedness) purchase date in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph Section 4.6(c). If the aggregate purchase price of the Securities tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of the Securities, the Company will apply the remaining Net Available Cash in accordance with Section 4.6(a)(iii)(F). Promptly, and in any event within 10 days after the Company is required to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities 52 46 purchased by the Company either in whole or in part (subject to prorating as hereinafter described in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date"). Not later than the date upon which such written notice of an Offer is delivered to the Trustee and the Holders, the Company shall deliver to the Trustee an Officers' Certificate setting forth (i) the amount of the Offer (the "Offer Amount"), (ii) the allocation of the Net Available Cash from the Asset Dispositions as a result of which such Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.6(a). Upon the expiration of the period (the "Offer Period") for which the Offer remains open, the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price of the Securities tendered by such Holder to the extent such funds are available to the Trustee. Holders electing to have a Security purchased will be required to surrender the Security, with an appropriate form duly completed, to the Company at the address specified in the notice prior to the expiration of the Offer Period. Each Holder will be entitled to withdraw its election if the Trustee or the Company receives, not later than one Business Day prior to the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter from such Holder setting forth the name of such Holder, the principal amount of the Security or Securities which were delivered for purchase by such Holder and a statement that such Holder is withdrawing his election to have such Security or Securities purchased. If at the expiration of the Offer Period the aggregate principal amount of Securities surrendered by Holders exceeds the Offer Amount, the Company shall select the Securities to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Securities in denominations of $1,000, or integral multiples thereof, shall be purchased). Holders whose Securities are purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(c) The Company will comply, to the extent applicable, with the requirements of SectionSection 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Securities pursuant to this Section 4.6. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.6, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue thereof. 53 47
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless:
(1) unless the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the CompanyBoard of Directors, of the shares and assets subject to such Asset Disposition;
(2) , and at least 75% of the consideration thereof therefor received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents; provided that . With respect to any Asset Disposition occurring on or after the amount of (A) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of Issue Date from which the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Securities)receives Net Available Cash, that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary shall: (i) within 360 days after the date such Net Available Cash is released from all liability with respect thereto), (B) any notes, other obligations or securities received by and to the extent the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for purposes of this provision and for no other purpose; 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) to the extent the Company 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 Indebtedness (other than any Disqualified Stock) of a such Restricted Subsidiary (Subsidiary, in each case owing to a Person other than Indebtedness owed to the Company or an any Affiliate of the Company) within one year from the later of the date of such Asset Disposition , or the receipt of such Net Available Cash;
(B) to the extent the Company electsinvest an equal amount, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(C) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) of this paragraph (a)(3) of this Section 4.07, to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) amount not so applied pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses clause (A), in Additional Assets (Bincluding 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 (Cii) of this paragraph apply such excess Net Available Cash (ato the extent not applied pursuant to clause (i)) as provided in the following paragraphs of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture4.6; provided, however, that in connection with any prepayment, repayment or purchase of Senior Indebtedness pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently retire such Senior 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 of this paragraph (a) of this Section 4.07 the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this covenant except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this covenant exceeds $15.0 million. Pending application of Net Available Cash pursuant to this Section 4.07, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness.
(b) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) of paragraph (a) of Section 4.07, the Company will purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph (c) of Sectionthe
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will 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 (including as to the value of all non-cash consideration), as determined in good faith by the CompanyBoard of Directors of the Company or such Subsidiary as the case may be, of the shares and assets subject to such Asset Disposition;
(2) 96 EXECUTION 106 Disposition and at least 7570% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents; provided that the amount of (A) any liabilities (as shown on the Company's or such 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for purposes of this provision and for no other purpose; and
(32) 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 or purchase Senior Indebtedness or Indebtedness (other than any Disqualified Stock) of a Restricted Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year 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 application in accordance with clause (A), to the extent the Company elects, to acquire 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 in accordance with clauses (A) and (B) of this paragraph (a)(3) of this Section 4.07), to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) 9% Notes to purchase Securities (and such other Senior Subordinated Indebtedness) the 9% Notes pursuant to and subject to the conditions contained in this Indenturethe Indenture relating thereto; and
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 cause the Note Issuer to make an offer to the Holders of the Securities and the DM Securities on a pro rata basis (determined in accordance with the respective outstanding principal amounts thereof at the time of such offer, as calculated by reference to an exchange rate of 1.8237 DM per $1.00) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted to purchase the Securities and the DM Securities pursuant to and subject to the terms conditions contained in the Indenture (in the case of this Indenturethe Securities) and in the DM Indenture (in the case of the DM Securities); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A), (C) or (CD) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 paragraph, the Company and the Restricted Subsidiaries will shall not be required to apply any Net Available Cash in accordance with this covenant paragraph except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is are not applied in accordance with this covenant paragraph exceeds $15.0 million20,000,000. Pending application of Net Available Cash pursuant to this Section 4.07covenant, such Net Available Cash shall be invested in Temporary Cash Investments Permitted Investments. For the purposes of this covenant, the following are deemed to be cash or applied to temporarily reduce revolving credit indebtednesscash equivalents: (x) the assumption of Indebtedness of the Company or any Subsidiary and the release of the Company or such Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (y) securities received by the Company or any Subsidiary from the transferee that are promptly converted by the Company or such Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) pursuant to clause (3)(Ca)(2)(D) of paragraph (a) of Section 4.07above, the Company Note Issuer will purchase the Securities tendered pursuant to 97 EXECUTION 107 an offer by the Company Note Issuer for the Securities (and such other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, ) plus accrued but unpaid interest, by mailing a notice to each Holder with a copy to the Trustee, within 30 days following the determination by or on behalf of the holders of the 9% Notes as to the amount of the 9% Notes to be purchased pursuant to the offer to repurchase the 9% Notes made pursuant to clause (a)(2)(C) above, stating:
(i) that an Asset Disposition that requires the purchase of the Securities pursuant to clause (a)(2)(D) above has occurred and that such Holder has a right to require the Note Issuer to repurchase Securities at a purchase price of 100% of their principal amount (without premium) plus accrued and unpaid interest (or, in respect an amount not to exceed the balance of Net Available Cash from such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) Asset Disposition after application in accordance with clauses (A), (B) and (C) of this covenant and that the procedures amount available for repurchase of the Securities will be increased to the extent that the holders of the DM Securities do not accept the offer to repurchase the DM Securities made pursuant to clause (including prorating D) above and the applicable provisions of the DM Indenture;
(ii) the repurchase date (which shall be no earlier than 30 days not later than 60 days from the date such notice is mailed);
(iii) that the tendered Securities will be repurchased pro rata in the event of oversubscription; provided, that the unrepurchased portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) set forth for such Security;
(iv) the instructions determined by the Note Issuer, consistent with the covenant described hereunder, that a Holder must follow in paragraph order to have its Securities purchased; and
(v) that each Security shall be subject to repurchase only in the amount of $1,000 or integral multiples thereof. The Note Issuer shall not make such an offer to purchase Securities pursuant to this covenant if the Net Available Cash available therefor is less than $20,000,000 (which lesser amount shall be carried forward for purposes of determining whether such an offer is required with respect to any subsequent Asset Disposition). Each Security shall be subject to repurchase only in the amount of $1,000 or integral multiples thereof. Upon presentation of any Security repurchased in part only, the Note Issuer shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Note Issuer, a new Security (and the Guarantors shall execute their Guaranties to be endorsed thereon) of authorized denominations, in aggregate principal amount equal to the unredeemed portion of the Security so presented and having the same Issue Date, Stated Maturity and terms. If a Global Security is so surrendered, such new Security will also be a new Global Security. 98 EXECUTION 108
(c) The Note Issuer shall, and the Company shall cause the Note Issuer to, comply, to the extent applicable, with the requirements of SectionSection 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Securities pursuant to this covenant. To the extent that the provisions of any securities laws or regulations conflict with provisions of this covenant, the Note Issuer shall, and the Company shall cause the Note Issuer to, comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this clause by virtue thereof.
Appears in 1 contract
Samples: Senior Subordinated Indenture (Fresenius National Medical Care Holdings Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will Issuer shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, consummate 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 Fair Market Value (including as to the value of all non-cash consideration), as determined in good faith by at the Company, time of contractual agreement to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(2ii) 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; provided that the amount of (A) 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for purposes of this provision and for no other purpose; 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)Disposition,
(A) to the extent the Company Issuer elects (or is required by the terms of any Indebtedness), is used to prepay, repay, redeem or purchase Senior (i) Secured Indebtedness of the Issuer or a Subsidiary Guarantor or (ii) Indebtedness (other than any Disqualified Stock) of a Restricted 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 one year 450 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(B) to the extent the Company elects, Issuer elects (including with respect to acquire Additional Assets the balance of such Net Available Cash after application (if any) in accordance with clause (A)) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;, is used to (i) make an Investment in any one or more businesses (provided that such Investment in any business is in the form of the acquisition of Capital Stock of such business such that such business constitutes a Restricted Subsidiary), (ii) acquire assets, (iii) acquire property, or (iv) make capital expenditures, in each case, used or useful in a Related Business (collectively, “Additional Assets”); and
(C) to the extent of the balance of such Net Available Cash after application (if any) in accordance with clauses (A) and (B) and the expiration of this paragraph (a)(3) of this Section 4.07the time periods set forth therein, to make an offer to the holders Holders of the Securities Notes (and to holders of other Senior Subordinated Pari Passu Indebtedness of the Issuer designated by the CompanyIssuer) to purchase Securities Notes (and such other Senior Subordinated IndebtednessPari Passu Indebtedness of the Issuer) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant made to satisfy clause (A) or (C) of this paragraph (a) of this Section 4.07above, the Company Issuer or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding For the foregoing provisions of this paragraph (a) purposes of this Section 4.07 4.08, the Company following are deemed to be cash or cash equivalents:
(i) the assumption or discharge of any liabilities (as shown on the Issuer’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of the Issuer or such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of such assets and for which the Issuer and all of the Restricted Subsidiaries will not be required to apply have been released by all creditors in writing;
(ii) securities received by the Issuer or any Net Available Cash in accordance with this covenant except Restricted Subsidiary from the transferee that are converted by the Issuer or such Restricted Subsidiary within 180 days into cash, to the extent of cash received in that the aggregate Net Available Cash from conversion;
(iii) all Asset Dispositions which is not applied in accordance with this covenant exceeds $15.0 million. Pending application of Net Available Cash pursuant to this Section 4.07, such Net Available Cash shall be invested in Temporary Cash Investments or applied Investments; and
(iv) any Designated Noncash Consideration having an aggregate Fair Market Value that, when taken together with all other Designated Noncash Consideration previously received and then outstanding, does not exceed 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 temporarily reduce revolving credit indebtednesssubsequent changes in value) 5.0% of Total Assets.
(b) In the event of an Asset Disposition that requires an offer to purchase the purchase of the Securities Notes (and other Senior Subordinated IndebtednessPari Passu Indebtedness of the Issuer) pursuant to clause (3)(C) of paragraph (a) of Section 4.074.08(a)(iii)(C), the Company will Issuer shall purchase Securities Notes tendered pursuant to an offer by the Company Issuer for the Securities Notes (and such other Senior Subordinated Pari Passu Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Pari Passu Indebtedness of the Issuer was issued with significant original issue discount, 100% of the accreted value thereof), ) without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated IndebtednessPari Passu Indebtedness of the Issuer, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Pari Passu Indebtedness) in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph this Indenture. If the aggregate purchase price of the securities tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Issuer shall select the securities to be purchased on a pro rata basis but in round denominations, which in the case of the Notes will be denominations of $2,000 principal amount or any greater integral multiple of $1,000. The Issuer shall not be required to make such an offer to purchase Notes (cand other Pari Passu Indebtedness of the Issuer) pursuant to this Section 4.08 if the Net Available Cash available therefor is less than $20,000,000 (which lesser amount shall be carried forward for purposes of Sectiondetermining whether such an offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon completion of such an offer, Net Available Cash shall be deemed to be reduced by the aggregate amount of such Offer.
(i) Promptly, and in any event within 30 days after the Issuer becomes obligated to make an Offer, the Issuer shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Notes purchased by the Issuer either in whole or in part (subject to prorating as described in Section 4.08(b) in the event the Offer is oversubscribed) in amounts of $2,000 and any greater integral multiple of $1,000 of principal amount at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the “Purchase Date”).
(ii) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Issuer shall deliver to the Trustee an Officers’ Certificate as to (A) the amount of the Offer (the “Offer Amount”), including information as to any other Pari Passu Indebtedness included in the Offer for repurchase, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.08(a). By Noon New York City time on the Purchase Date, the Issuer shall irrevocably deposit with the Trustee or with a Paying Agent (or, if the Issuer or a Wholly Owned Subsidiary is acting as Paying Agent, segregate and hold in trust) an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section 4.
Appears in 1 contract
Samples: Indenture (Amsurg Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless:
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 (including as to the value of all non-cash consideration), as determined in good faith by the Company, ) of the shares and assets subject to such Asset Disposition;
, (2ii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents; equivalents (provided that the amount of (Aw) 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 Securities), Notes) that are assumed by the transferee of any such assets (provided that without recourse to the Company or such any of the Restricted Subsidiary is released from all liability with respect thereto)Subsidiaries, (Bx) any notes, notes or other obligations or securities received by the 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 and Disposition, (Cy) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (Cy) and Section 4.06(a)(ii)(y) of this paragraph (a) of this Section 4.07 the 1998 Notes Indenture that is at that time outstanding, not to exceed $5.0 million 5% of Adjusted Consolidated Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be cash for purposes of this provision and for no other purpose; andbeing
(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) to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness or Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(B) to the extent the Company elects, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(C) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) of this paragraph (a)(3) of this Section 4.07, to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.07, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this covenant except to the extent that the aggregate Net Available Cash from all Asset Dispositions which that is not applied in accordance with this covenant Section 4.06 (a) exceeds $15.0 million. Pending application of 20.0 million (provided that such amount shall be reduced by the aggregate Net Available Cash pursuant from all Asset Dispositions not applied in accordance with Section 4.06(a) of the 1998 Notes Indenture prior to this Section 4.07, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtednessthe Closing Date).
(b) In the event of an Asset Disposition that requires the purchase of the Securities Notes (and other Senior Subordinated IndebtednessIndebtedness of the Company) pursuant to clause (3)(C) of paragraph (a) of Section 4.074.06(a)(iii)(C), the Company will shall be required to purchase Securities Notes (and other Senior Subordinated Indebtedness of the Company) tendered pursuant to an offer by the Company for the Securities Notes (and such other Senior Subordinated IndebtednessIndebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but and unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser priceand liquidated damages, if any, as may be provided for by to the terms date of such Senior Subordinated Indebtedness) purchase in accordance with the procedures (including prorating in the event of oversubscription) ), set forth in paragraph Section 4.06(c). If the aggregate purchase price of Notes (cand other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of the Notes (and other Senior Subordinated Indebtedness of the Company), the Company may apply the remaining Net Available Cash for any purpose permitted by the terms of this Indenture. The Company shall not be required to make an Offer for Notes (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor (after application of the proceeds as provided in clauses (A) and (B) of Section 4.06(a)(iii)) is less than $10.0 million for any particular Asset Disposition (which lesser amount shall be carried forward for purposes of determining whether an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 30 days after the Company becomes obligated to make an Offer, the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Noteholder, a written notice stating that the Noteholder may elect to have his Notes purchased by the Company either in whole or in part (subject to prorating as hereinafter described in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain or incorporate by reference such information concerning the business of the Company which the Company in good faith believes will enable such Noteholders to make an informed decision and all instructions and materials necessary to tender Notes pursuant to the Offer, together with the address referred to in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers' Certificate as to (i) the amount of the Offer (the "Offer Amount"), (ii) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.06(a). On such date, the Company shall also irrevocably deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust) an amount equal to the Offer Amount to be invested in Temporary Cash Investments and to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancelation the Notes or portions thereof that have been properly tendered to and are to be accepted by the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Noteholder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes (and other Senior Subordinated Indebtedness of the Company) delivered by the Company to the Trustee is less than the Offer Amount applicable to the Notes (and other Senior Subordinated Indebtedness of the Company), the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Noteholders electing to have a Note purchased shall be required to surrender the Note, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Noteholders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Noteholder, the principal amount of the Note which was delivered by the Noteholder for purchase and a statement that such Noteholder is withdrawing his election to have such Note purchased. If at the expiration of the Offer Period the aggregate principal amount of Notes and any other Senior Subordinated Indebtedness of the Company included in the Offer surrendered by holders thereof exceeds the Offer Amount, the Company shall select the Notes and other Senior Subordinated Indebtedness of the Company to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes and other Senior Subordinated Indebtedness of the Company in denominations of $1,000, or integral multiples thereof, shall be purchased). Noteholders whose Notes are purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(4) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Note shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Noteholder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue thereof.
Appears in 1 contract
Samples: Indenture (Wesco International Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, consummate 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 (including as to the value of all non-cash consideration), as determined in good faith by the Company, Fair Market Value of the shares and assets subject to such Asset Disposition;,
(2) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash cash, assets useful in a Permitted Business, or cash equivalents; provided that the amount assumption by the purchaser of (A) 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 Securities), that Notes) as a result of which the Company and the Restricted Subsidiaries are assumed by the transferee of any such assets (no longer obligated with respect to those liabilities; provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent amount of the cash received) within 180 days following the closing of such Asset Disposition and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for the purposes of this provision and (but for no other purpose) so long as such amount, taken together with the Fair Market Value when received of all other Designated Noncash Consideration that is at that time outstanding (i.e., that has not been sold for or otherwise converted into cash or Permitted Securities), does not exceed the greater of (i) $150,000,000 and (ii) 6% of Consolidated Tangible Assets as of the last day of the most recent fiscal quarter; provided, further, that (A) securities or other assets 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 the closing of such Asset Disposition shall be considered to be cash to the extent of the cash received in that conversion; and (B) any cash consideration paid to the Company or the Restricted Subsidiary in connection with the Asset Disposition that is held in escrow or on deposit to support indemnification, adjustment of purchase price or similar obligations in respect of such Asset Disposition shall be considered to be 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)) within 365 days after the later of the date of such Asset Disposition and the receipt of such Net Available Cash:
(A) 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 Secured Indebtedness of the Company or Indebtedness a Subsidiary Guarantor (other than any Disqualified StockStock or Subordinated Obligations) or Indebtedness of a 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 one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(B) to the extent 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 electsor another Restricted Subsidiary); provided, that a binding commitment to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such apply Net Available Cash;
Cash in accordance with this clause (CB) to the extent of the balance shall be treated as an application of such Net Available Cash after application from the date of such commitment if (i) such reinvestment is consummated within 180 days at the end of such 365 day period referred to in accordance with clauses this clause (A3) and (Bii) if such reinvestment is not consummated within the period set forth in subclause (i) or such binding commitment is terminated, the Net Available Cash shall constitute available Net Available Cash; or
(C) (i) to redeem the Notes or make open market purchases thereof at a price not less than 100% of this paragraph the principal amount thereof or (a)(3ii) of this Section 4.07, to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) Asset Disposition Offer to purchase Securities (and such other Senior Subordinated Indebtedness) Notes pursuant to and subject to the conditions contained set forth in Section 4.10(b); provided, however, that if the Company elects (or is required by the terms of any Pari Passu Indebtedness), such Asset Disposition Offer may be made ratably (determined based upon the respective principal amounts of the Notes and such Pari Passu Indebtedness being purchased or repaid) to purchase the Notes and to purchase or otherwise repay such Pari Passu Indebtedness; provided that pending final application of any such Net Available Cash in accordance with clause (3)(A), (B) or (C) above, the Company and the Restricted Subsidiaries may temporarily reduce revolving Indebtedness outstanding under the Existing Credit Agreement or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture; and
(D) to . To the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary, as the case may be, may use such balance for any general corporate purpose permitted pursuant to not prohibited by the terms of this Indenture; provided, however, that in . In connection with any prepayment, repayment repayment, purchase, repurchase, redemption, retirement, defeasance or purchase other acquisition for value of Indebtedness pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently Subsidiary, as the case may be, will retire such Indebtedness and shall will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid repaid, purchased, repurchased, redeemed, retired, defeased or purchasedotherwise acquired for value. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 4.10, the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this covenant except to the extent that the aggregate Net Available Cash from all Asset Dispositions which that is not applied in accordance with this covenant exceeds $15.0 million. Pending application of Net Available Cash pursuant to this Section 4.07, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness100,000,000.
(b) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) Notes pursuant to clause (3)(C) of paragraph (a) of Section 4.074.10(a)(3)(C), the Company will be required
(i) to purchase Securities Notes tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) Notes (the "“Asset Disposition Offer"”) at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but and unpaid interest thereon to the date of purchase (or, in respect subject to the right of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by Holders of record on the terms of such Senior Subordinated Indebtednessrelevant date to receive interest due on the relevant Interest Payment Date) in accordance with the procedures (procedures, including prorating in the event of oversubscription) , set forth in paragraph this Indenture, and
(ii) to purchase or otherwise repay Pari Passu Indebtedness of the Company on the terms and to the extent contemplated thereby at the purchase price set forth in the relevant documentation (including accrued and unpaid interest to the date of acquisition, the “purchase price”), provided that to the extent the purchase price of any such Pari Passu Indebtedness exceeds 100% of the principal amount thereof, plus accrued and unpaid interest thereon to the date of acquisition, the Company shall not use any Net Available Cash to pay such purchase price, except as permitted by the next sentence. If the aggregate purchase price of Notes and Pari Passu Indebtedness tendered pursuant to the Asset Disposition Offer is less than the Net Available Cash allotted to the purchase of the Notes and Pari Passu Indebtedness, the Company will apply the remaining Net Available Cash for any general corporate purpose not prohibited by the terms of this Indenture. The Company will not be required to make an Asset Disposition Offer for Notes and Pari Passu Indebtedness pursuant to this Section 4.10 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 4.10(a)(3)(A) and (B)) is less than $100,000,000 for any particular Asset Disposition (which lesser amount will be carried forward for purposes of determining whether an Asset Disposition Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon consummation of any Asset Disposition Offer, the Net Available Cash in respect of any Asset Disposition(s) shall be reduced to zero.
(c) (i) Promptly, and in any event within 20 days after the Company becomes obligated to make an Asset Disposition Offer, the Company shall be obligated to deliver to the Trustee and send or, at the request of Sectionthe Company have the Trustee send (such notice to be provided to the Trustee at least five Business Days before the Trustee is requested to send such notice unless a shorter period shall be satisfactory to the Trustee), in the name and on behalf of the Company, by first-class mail to each Holder, or in the case of Global Notes, send in accordance with the Applicable Procedures of the Depositary, a written notice stating that the Holder may elect to have its Notes purchased by the Company either in whole or in part (subject to prorating as hereinafter described in the event the Asset Disposition Offer is oversubscribed) in minimum denominations of $2,000 of principal amount or any greater integral multiple of $1,000 thereof, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the “Purchase Date”) and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum shall include (1) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports); provided that in lieu of providing the reports specified in this subclause (1), the Company may, at its option, notify the holders that such reports are available to them in electronic format through the SEC’s XXXXX system, (2) a description of material developments in the Company’s business subsequent to the date of the latest of such reports, and (3) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Notes pursuant to the Asset Disposition Offer, together with the address referred to in clause (iii).
Appears in 1 contract
Samples: Indenture (Qorvo, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless:
(1i) the The Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value value, as determined in good faith by the Company (including as to the value of all non-cash consideration), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition;
(2) Disposition and at least 7575.0% of the consideration thereof received received, together with all other Asset Dispositions since the Reference Date (on a cumulative basis), by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, however, that in the case of an Asset Disposition (x) involving the disposition of non-core assets (as determined by the Company in its good faith judgment) acquired as part of any acquisition after the Issue Date or (y) for aggregate consideration of less than $100.0 million, only 50.0% of the consideration therefor must be in the form of cash equivalentsor Cash Equivalents; provided that the amount of further that:
(A) 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any promissory notes, securities or other obligations or securities amounts received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 360 days of the receipt thereof (to the extent of the cash received) within 180 days following the closing shall be deemed to be cash solely for purposes of such Asset Disposition and this Section 10.16(a)(i), and
(CB) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market valueFair Market Value, when taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (CSection 10.16(a)(i)(B) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed the greater of (x) $5.0 225.0 million and (y) 6.0% of Consolidated Tangible Assets at the time of receipt of such Designated Noncash Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), ) shall be deemed to be cash solely for purposes of this provision and for no other purposeSection 10.16(a)(i); and
(3ii) an amount equal to 100100.0% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be), at its option except as described below:
(A) (x) to the extent the Company elects (or is required by the terms of any IndebtednessSenior Indebtedness or any Indebtedness of any non-Guarantor Subsidiary), to prepay, repay, redeem repay or purchase Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary of the Company within 365 days of such Asset Disposition, (other than any Disqualified Stocky) of a at the Company’s election, to the investment by the Company or such Restricted Subsidiary in assets to replace the assets that were the subject of such Asset Disposition or assets that (as determined in good faith by the Company) are directly related to the business of the Company and the Restricted Subsidiaries existing on the Acquisition Closing Date, in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year 365 days from the later of the date of such Asset Disposition Disposition, or (z) a combination of the receipt of foregoing purposes within such Net Available Cash;365-day period; or
(B) 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 any other Senior Indebtedness or Indebtedness of a non-Guarantor Subsidiary designated by the Company, at a price no greater than par) plus accrued and unpaid interest, which offer can be made at the Company’s election at any time during the 365-day period set forth in Section 10.16(a)(ii)(A) or within one year from the later of the date of 10 Business Days after such Asset Disposition or the receipt of such Net Available Cash;period; and
(C) to the extent of the balance of such Net Available Cash after application in accordance with clauses (ASections 10.16(a)(ii)(A) and (B) of this paragraph (a)(3) of this Section 4.07, to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A10.16(a)(ii)(B), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose purposes otherwise permitted pursuant to the terms of under this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (ASections 10.16(a)(ii)(A) or (C) of this paragraph (a) of this Section 4.0710.16(a)(ii)(B), the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; provided, further, that in connection with any investment pursuant to Section 10.16(ii)(A)(y) above, a binding commitment entered into during the 365-day period described in Section 10.16(ii)(A) above shall be treated as a permitted application of the Net Available Cash from such Asset Disposition from the date of such commitment so long as the Company or such Restricted Subsidiary enters into such commitment with the good-faith expectation that such Net Available Cash will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”); provided, further, that, if any Acceptable Commitment is later cancelled or terminated for any reason before such Net Available Cash is applied, then the Company and its Restricted Subsidiaries shall be required to apply such Net Available Cash in accordance with this Section 10.16. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 10.16, the Company and the its Restricted Subsidiaries will shall not be required to apply any Net Available Cash in accordance with this covenant Section 10.16 except to the extent that the aggregate Net Available Cash from all Asset Dispositions (including any Asset Dispositions made since the Issue Date) which is are not applied in accordance with this covenant Section 10.16 exceeds the greater of (i) $15.0 million235.0 million and (ii) 6.0% of Consolidated Tangible Assets as of the date of such Asset Disposition. Pending application For the purposes of Net Available Cash pursuant to this Section 4.0710.16, 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 or to any Subordinated Obligation) of the Company or any Restricted Subsidiary and for which the Company or such Net Available Cash shall be invested Restricted Subsidiary has been validly released by all creditors in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtednesswriting.
(b) In the event of an Asset Disposition that requires results in an offer to purchase the purchase of the Securities Notes (and other Senior Subordinated IndebtednessIndebtedness or Indebtedness of any non-Guarantor Subsidiary) pursuant to clause (3)(C) of paragraph (a) of Section 4.0710.16(a)(ii)(B), the Company will or such Restricted Subsidiary shall purchase Securities Notes tendered pursuant to an offer by the Company for the Securities Notes (and such and, to the extent required, other Senior Subordinated Indebtedness) (the "Offer"Indebtedness of any non-Guarantor Subsidiary) at a purchase price of 100100.0% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, ) plus accrued but unpaid interest (or, in respect of such other Senior Subordinated IndebtednessIndebtedness or Indebtedness of any non-Guarantor Subsidiary, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated IndebtednessIndebtedness or Indebtedness of any non-Guarantor Subsidiary, as applicable) in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph this Indenture which shall include, among other things, that the offer shall remain open for 20 Business Days following its commencement. If the aggregate purchase price of Notes (and, to the extent required, any other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary) tendered pursuant to such offer is less than the Net Available Cash allotted to the purchase thereof, the Company shall be entitled to apply the remaining Net Available Cash in accordance with Section 10.16(a)(ii)(A) or (C). The Company shall not be required to make such an offer to purchase Notes (and other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary) pursuant to this Section 10.16 if the Net Available Cash available therefor is less than the greater of (i) $235.0 million and (ii) 6.0% of Consolidated Tangible Assets (which lesser amount shall be carried forward for purposes of determining whether such an offer is required with respect to any subsequent Asset Disposition). The Company shall not be required to make such an offer to purchase Notes (and other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary) pursuant to this Section 10.16 if a third party (including any of the Company’s Restricted Subsidiaries) makes the offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to such an offer by the Company and purchases all Notes validly tendered and not withdrawn under such offer. Upon completion of any such offer by the Company for Notes, the amount of Net Available Cash related to such Asset Disposition shall be reset to zero, and during the pendency of an offer by the Company for Notes being effected in advance of being required to do so by this Indenture, the amount of Net Available Cash the Company is offering to apply in such offer shall be excluded in subsequent calculations of Net Available Cash in respect of subsequent Asset Dispositions. Pending the final application of any Net Available Cash pursuant to Section 10.16(a)(ii), the Company or the applicable Restricted Subsidiary may apply such Net Available Cash temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Available Cash in cash and Cash Equivalents or Investment Grade Securities.
(c) The Company shall comply, to the extent applicable, with the requirements of SectionSection 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 10.16. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 10.16, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 10.16(c) by virtue thereof.
Appears in 1 contract
Samples: Indenture (Terex Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will 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 (including as to the value of all non-cash consideration), as determined in good faith by the CompanyBoard of Directors of the Company or such Subsidiary as the case may be, of the shares and assets subject to such Asset Disposition;
(2) Disposition and at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash, cash equivalents or cash equivalents; provided that the amount of (A) 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 Marketable Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for purposes of this provision and for no other purpose; and
(32) 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 or purchase Senior Indebtedness or Indebtedness (other than any Disqualified Stock) of a Restricted Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year eighteen months 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 application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets within one year eighteen 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) of this paragraph (a)(3) of this Section 4.07), to make an offer to the holders Holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this the Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, provided that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 paragraph, the Company and the Restricted Subsidiaries will shall not be required to apply any Net Available Cash in accordance with this covenant paragraph except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is are not applied in accordance with this covenant paragraph exceeds $15.0 million5,000,000. Pending application of Net Available Cash pursuant to this Section 4.07covenant, such Net Available Cash shall be invested in Temporary Cash Investments Permitted Investments. For the purposes of this covenant, the following are deemed to be cash or applied to temporarily reduce revolving credit indebtednesscash equivalents: (x) the assumption of Indebtedness of the Company or any Subsidiary and the release of the Company or such Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (y) securities received by the Company or any Subsidiary from the transferee that are promptly converted by the Company or such Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) pursuant to clause (3)(Ca)(2)(C) of paragraph (a) of Section 4.07above, the Company will be required to purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100101% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, ) plus accrued but unpaid interest (orinterest, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph the Indenture. The Company shall not be required to make such an offer to purchase Securities pursuant to this covenant if the Net Available Cash available therefor is less than $5,000,000 (which lesser amount shall be carried forward for purposes of determining whether such an offer is required with respect to any subsequent Asset Disposition).
(c) The Company shall comply, to the extent applicable, with the requirements of SectionSection 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Securities pursuant to this covenant. To the extent that the provisions of any securities laws or regulations conflict with provisions of this covenant, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this clause by virtue thereof.
Appears in 1 contract
Samples: Senior Subordinated Indenture (Symons International Group Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition of any 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 value (including as to the value of all non-cash consideration), as determined in good faith by the CompanyBoard of Directors, of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalentsCash Equivalents; provided that and
(3) an amount equal to 100% of the amount Net Available Cash from such Asset Disposition is paid directly by the purchaser thereof, subject to the terms of the Intercreditor Agreement and the Security Documents, to the Collateral Agent or the Trustee to be held in trust and applied by the Company (A) any liabilities (as shown on the Company's or such Restricted Subsidiary, as the case may be) at the Company's most recent balance sheet election either:
(A) to acquire Additional Assets, which Additional Assets are concurrently with their acquisition added to the Collateral securing the Securities; provided, that if such Asset Disposition consists of assets or property of a Domestic Subsidiary that such Additional Assets shall also be assets or property of a Domestic Subsidiary;
(B) to repay any obligations under the Credit Facility and, in the notes theretocase of any term loan facility, effect a permanent reduction in the availability under such term loan facility;
(C) if such Asset Disposition occurs prior to __________, 2007 [third anniversary from the Issue Date] and if the Net Available Cash from such Asset Disposition is $25.0 million or more, to redeem the Securities pursuant to Section 3.01(c) of this Indenture; or
(D) if such Asset Disposition occurs after _________, 2007 [third anniversary from Issue Date], to redeem the Securities pursuant to Section 3.01(a) of this Indenture; in each case within three months from the later of the date of such Asset Disposition or the receipt of such Net Available Cash.
(b) The Company or shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition (other than liabilities that are by their terms subordinated to the Securities), that are assumed by the transferee an Asset Disposition of any such assets Collateral) unless:
(provided that 1) the Company or such Restricted Subsidiary is released from receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all liability with respect theretonon-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition;
(B2) any notes, other obligations or securities at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary from such transferee that are converted by is in the Company form of cash or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of such Asset Disposition and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for purposes of this provision and for no other purposeCash 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) to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Credit Facility Indebtedness or Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(B) to the extent the Company elects, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(C) to repay any obligations under the extent Credit Facility and, in the case of any term loan credit facility, effect a permanent reduction in the balance of availability under such Net Available Cash after application in accordance with clauses (A) and (B) of this paragraph (a)(3) of this Section 4.07, to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indentureterm loan facility; andor
(D) to the extent of the balance of such Net Available Cash after application in accordance with (or upon election not to utilize) clauses (A), ) or (B) and (C) of this paragraph (a) of this Section 4.07section 4.06(b)(3), for any general corporate purpose permitted to elect to redeem Securities pursuant to the terms Section 3.01 of this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness under a term loan facility pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.074.06(b), the Company or such Restricted Subsidiary shall permanently retire such term loan facility 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. .
(c) Notwithstanding the foregoing provisions of this paragraph paragraphs (a) and (b) of this Section 4.07 4.06, the Company and the Restricted Subsidiaries will shall not be required to apply any Net Available Cash in accordance with this covenant those paragraphs except to the extent that the aggregate Net Available Cash from all Asset Dispositions subject to those paragraphs which is not applied in accordance with this covenant those paragraphs exceeds $15.0 5.0 million. Pending application of Net Available Cash pursuant to this Section 4.074.06, such Net Available Cash shall be invested in Temporary Cash Investments Equivalents or applied to temporarily reduce revolving credit indebtedness.
(bd) In For the event purposes of an Asset Disposition that requires this Section 4.06, the purchase following are also deemed to be cash or Cash Equivalents:
(1) the assumption of Indebtedness of the Securities 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 other Senior Subordinated Indebtedness) pursuant to clause (3)(C) the release of paragraph (a) of Section 4.07, the Company will purchase Securities tendered pursuant to an offer or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition; and
(2) securities received by the Company for or any Restricted Subsidiary from the Securities (and such other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for transferee that are promptly converted by the terms Company or such Restricted Subsidiary into cash, to the extent of such Senior Subordinated Indebtedness) cash received in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph (c) of Sectionthat conversion.
Appears in 1 contract
Samples: Indenture (International Wire Rome Operations, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless:
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 (as determined in good faith by senior management of the Company or, if the fair market value of such assets exceeds $500,000, by the Company's Board of Directors) (including as to the value of all non-cash consideration), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition;
, (2ii) at least 7580% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents; provided that the amount of (A) any liabilities (as shown on the Company's Cash Equivalents, Additional Assets or such Restricted Subsidiary's most recent balance sheet distribution agreements with radio stations or in the notes thereto) cable television operators or other video distributors which would receive programming of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant according to this clause the Company's historical practice and (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for purposes of this provision and for no other purpose; 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 or Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate its Restricted Subsidiaries or (y) to the investment in or acquisition of the Company) Additional Assets within one year 180 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
; (B) to the extent the Company electssecond, to acquire Additional Assets within one year 180 days from the later of the date of such Asset Disposition or 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 make an offer to purchase Securities (C) third, within 180 days after the later of the application of Net Available Cash in accordance with clauses (A) and (B) and 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) and (B), to prepay, repay or repurchase Indebtedness (other than Preferred Stock) of this paragraph a Wholly-Owned Subsidiary (a)(3) of this Section 4.07, to make an offer in each case other than Indebtedness owed to the holders of the Securities (Company or another Wholly-Owned Subsidiary); and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; 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 this paragraph Additional Assets, (ax) the making of this Section 4.07Temporary Cash Investments, for (y) the prepayment, repayment or purchase of Indebtedness of the Company (other than Indebtedness owing to any general corporate purpose permitted pursuant Subsidiary of the Company) or Indebtedness of any Subsidiary (other than Indebtedness owed to the terms Company or any of this 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 that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A), (B), (C) or (CD) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; provided, however, that the foregoing shall not be deemed to require any reduction in the commitment for Bank Indebtedness to less than $20 million. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 provisions, the Company and the its Restricted Subsidiaries will shall not be required to apply any Net Available Cash in accordance with this covenant herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is has not been applied in accordance with this covenant at any time exceeds $15.0 5 million. Pending application of The Company shall not be required to make an offer for Securities pursuant to this covenant if the Net Available Cash pursuant 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 this Section 4.07, such the Net Available Cash shall from any subsequent Asset Disposition). For the purposes of this covenant, the following will be invested deemed to be cash: (x) the assumption by the transferee of Senior Indebtedness of the Company or Senior 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 Senior Indebtedness in Temporary Cash Investments 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)) and (y) securities received by the Company or applied to temporarily reduce revolving credit indebtednessany Restricted Subsidiary of the Company from the transferee that are promptly (and in any event within 60 days) converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) of paragraph (a) of Section 4.07a)(iii)(B), the Company will be required to purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100101% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but and unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser priceinterest, if any, as may be provided for by to the terms of such Senior Subordinated Indebtedness) purchase date in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph herein. If the aggregate purchase price of the Securities tendered pursuant to the offer is less than the Net Available Cash allotted to the purchase of the Securities, the Company will apply the remaining Net Available Cash in accordance with clauses (a)(iii)(C) or (D) above.
(c) The Company will comply, to the extent applicable, with the requirements of SectionSection 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Securities pursuant to the Indenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this covenant, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Indenture by virtue thereof.
Appears in 1 contract
Samples: Indenture (Mediaamerica Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will 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 (including as to the value of all non-cash consideration), as determined in good faith by the CompanyBoard of Directors, of the shares and assets subject to such Asset Disposition;
; (2) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash, cash equivalents; provided that the amount of (A) 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 , Additional Assets or any Restricted Subsidiary combination thereof (other than liabilities that are by their terms subordinated to the Securities"Permitted Consideration"); provided, that are assumed by the transferee of any such assets (provided however, that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an shall be permitted to receive Property other than Permitted Consideration, so long as the aggregate fair market value, when taken together with as determined in the good faith of the Board of Directors, of all such Property other Designated Noncash than Permitted Consideration received pursuant to this clause (C) from Asset Dispositions and held by the Company and the Restricted Subsidiaries at any one time shall not exceed 10% of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received Adjusted Consolidated Net Tangible Assets; and without giving effect to subsequent changes in value), shall be deemed to be cash for purposes of this provision and for no other purpose; 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 Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year 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 application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets within 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) of this paragraph (a)(3) of this Section 4.07), 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) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (ASection 4.8(b), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 4.8, the Company and the Restricted Subsidiaries will shall not be required to apply any Net Available Cash in accordance with this covenant Section 4.8(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is are not applied in accordance with this covenant Section 4.8(a) exceeds $15.0 20.0 million. Pending application of Net Available Cash pursuant to this Section 4.074.8(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 4.8(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 (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.
(b) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) of paragraph (a) of Section 4.074.8(a)(3)(C), the Company will shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) Indebtedness (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) Indebtedness in accordance with the procedures (including prorating prorationing in the event of oversubscriptionover subscription) set forth in paragraph Section 4.8(c). If the aggregate purchase price of Securities (cand any other Senior Indebtedness tendered pursuant to the Offer) exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Indebtedness pursuant to this Section 4.8 if the Net Available Cash available therefor is less than $20.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.8(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description o f material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.8(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, Schedule III-5 if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.8.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that the Securities were accepted for payment by the Company in accordance with the terms of this covenant. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Supplemental Indenture (Pioneer Natural Resources Co)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and 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 (including as to the value of all non-cash consideration), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents; provided that the amount of (A) any liabilities (as shown on the Company's or such 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for purposes of this provision and for no other purpose; 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) to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness or Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(B) to the extent the Company elects, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(C) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) of this paragraph (a)(3) of this Section 4.07, to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.07, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this covenant except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this covenant exceeds $15.0 million. Pending application of Net Available Cash pursuant to this Section 4.07, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness.
(b) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) of paragraph (a) of Section 4.07, the Company will purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph (c) of Section 4.07. If the aggregate purchase price of the securities tendered exceeds the Net Available Cash allotted to their purchase, the Company will select the securities to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of EURO 1,000 principal amount or multiples thereof. The Company shall not be required to make such an Offer to purchase Securities (and other Senior Subordinated Indebtedness) pursuant to this Section 4.07 if the Net Available Cash available therefor is less than $15.0 million (which lesser amount shall be carried forward for purposes of determining whether such an offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, and, as long as the Securities are listed on the Luxembourg Stock Exchange, publish in a Luxembourg newspaper of general circulation, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as hereinafter described in the event the Offer is oversubscribed) in integral multiples of EURO 1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (i) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (ii) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (iii) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (i) the amount of the Offer (the "Offer Amount"), (ii) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (iii) the compliance of such allocation with the provisions of paragraph (a) of Section 4.07. On such date, the Company shall also irrevocably deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.07.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. If at the expiration of the Offer Period the aggregate principal amount of Securities (and any other Senior Subordinated Indebtedness included in the Offer) surrendered by holders thereof exceeds the Offer Amount, the Company shall select the Securities and the other Senior Subordinated Indebtedness to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Securities and the other Senior Subordinated Indebtedness in denominations of EURO 1,000, or integral multiples thereof, shall be purchased). Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Securities pursuant to this Section 4.07. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.07, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.07 by virtue of its compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Indenture (Gutbusters Pty LTD)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, to consummate any Asset Disposition unless:
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 (including as to the value of all non-cash noncash consideration), as determined in good faith by the CompanyBoard of Directors, of the shares and assets subject to such Asset Disposition;
, and (2ii) 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; provided . In the event and to the extent that the amount of (A) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of aggregate Net Available Cash received by the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to from one or more Asset Disposition occurring on or after the Securities)Issue Date exceeds $10,000,000, that are assumed by the transferee of any such assets (provided that then the Company or such Restricted Subsidiary is released from all liability with respect thereto), shall (BA) any notes, other obligations or securities received by within 360 days after the receipt of such Net Available Cash and to the extent the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for purposes of this provision and for no other purpose; 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) to the extent the Company 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 Indebtedness (other than any Disqualified Stock) of a such Restricted Subsidiary (Subsidiary, in each case owing to a Person 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 one year from 360 days after the later of the date end of such Asset Disposition 360-day period) an equal amount, or the receipt of such Net Available Cash;
amount not so applied pursuant to clause (B) to the extent the Company elects1), to acquire in Additional Assets within one year from the later (including by means of the date of such Asset Disposition or the receipt of such Net Available Cash;
(C) to the extent of the balance of such an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash after application in accordance with clauses (Areceived by the Company or another Restricted Subsidiary) and (B) of this paragraph apply such excess Net Available Cash (a)(3) of this Section 4.07to the extent not applied pursuant to clause (A)), to make an offer to the holders of the Securities Offer (and to holders of other Senior Subordinated Indebtedness designated by the Companyas defined below) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (ASection 4.06(b), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that in connection with any prepayment, repayment or purchase -------- ------- of Senior Indebtedness pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently retire such Senior 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 of this paragraph (a) of this Section 4.07 ; provided further, however, ---------------- ------- that the Company and the or such Restricted Subsidiaries will Subsidiary shall not be required to apply permanently reduce the related loan commitment in the case of any Net Available Cash in accordance such prepayment, repayment or purchase with this covenant except to the extent that the aggregate Net Available Cash from all any Asset Dispositions which Disposition of Non-Core Assets, so long as an amount equal to 100% of such Net Available Cash is invested in Additional Assets within the period required pursuant to clause (B) above. The amount of such excess Net Available Cash required to be applied pursuant to clause (B) above and not theretofore so applied in accordance with this covenant exceeds $15.0 millionshall constitute "Excess Proceeds". Pending application of Net Available Cash pursuant to this Section 4.07covenant, 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 indebtednessthe 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 (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.
(b) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) of paragraph (aB) of Section 4.074.06(a), the Company will shall be required to purchase an aggregate principal amount of Securities equal to the Excess Proceeds (rounded down to the nearest multiple of $1,000) which have been tendered by Holders pursuant to an offer offer, commenced within 30 days following the expiration of the applicable period referred to clause (A) of Section 4.06(a) (or, if the Company so elects, at any time within such period), by the Company for the Securities (and such other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but and unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser priceinterest, if any, as may be provided for by to the terms date of such Senior Subordinated Indebtedness) purchase, subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date that is on or prior to the date of repurchase, in accordance with the procedures (including prorating prorationing in the event of oversubscription) set forth in paragraph Section 4.06(c). If the aggregate purchase price of Securities tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of the Securities, such remaining Net Available Cash may be used by the Company for any corporate purpose (cto the extent not otherwise prohibited by the Indenture). The Company shall not be required to make an Offer for Securities pursuant to this Section if the Net Available Cash available therefor (after application of the proceeds as provided in clause (A) of Section 4.06(a)) is less than $10,000,000 (which lesser amount shall be carried forward for purposes of determining whether an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 30 days after the Company becomes obligated to make an Offer, the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorationing as hereinafter described in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (i) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials, or corresponding successor reports, (ii) a description of material developments in the Company's business subsequent to the date of the latest of such reports and (iii) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (2)).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers' Certificate as to (i) the amount of the Offer (the "Offer Amount"), (ii) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.06(a). On such date, the Company shall also irrevocably deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. If at the expiration of the Offer Period the aggregate principal amount of Securities surrendered by Holders exceeds the Offer Amount, the Company shall select the Securities to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Securities in denominations of $1,000, or integral multiples thereof, shall be purchased). Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section 4.06. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations thereunder in connection with the repurchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue thereof.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will 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 (including as to the value of all non-cash consideration), as determined in good faith by the CompanyBoard of Directors, of the shares and assets subject to such Asset Disposition;
; (2) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash, cash equivalents; provided that the amount of (A) 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 , Additional Assets or any Restricted Subsidiary combination thereof (other than liabilities that are by their terms subordinated to the Securities"Permitted Consideration"); provided, that are assumed by the transferee of any such assets (provided however, that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an shall be permitted to receive Property other than Permitted Consideration, so long as the aggregate fair market value, when taken together with as determined in the good faith of the Board of Directors, of all such Property other Designated Noncash than Permitted Consideration received pursuant to this clause (C) from Asset Dispositions and held by the Company and the Restricted Subsidiaries at any one time shall not exceed 10% of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received Adjusted Consolidated Net Tangible Assets; and without giving effect to subsequent changes in value), shall be deemed to be cash for purposes of this provision and for no other purpose; 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 Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year 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 application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(C) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) of this paragraph (a)(3) of this Section 4.07, to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.07, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this covenant except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is are not applied in accordance with this covenant Section 4.15(a) exceeds $15.0 20.0 million. Pending application of Net Available Cash pursuant to this Section 4.074.15(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 (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.
(b) In the event of an Asset Disposition that requires the purchase of the Debt Securities (and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) of paragraph (a) of Section 4.074.15(a)(3)(C), the Company will shall purchase Debt Securities tendered pursuant to an offer by the Company for the Debt Securities (and such other Senior Subordinated Indebtedness) Indebtedness (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) Indebtedness in accordance with the procedures (including prorating prorationing in the event of oversubscriptionover subscription) set forth in paragraph Section 4.15(c). If the aggregate purchase price of Debt Securities (cand any other Senior Indebtedness tendered pursuant to the Offer) exceeds the Net Available Cash allotted to their purchase, the Company shall select the Debt Securities and other Senior Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Debt Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Debt Securities (and other Senior Indebtedness pursuant to this Section 4.15 if the Net Available Cash available therefor is less than $20.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Debt Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.15(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Debt Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.15(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Debt Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Debt Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Debt Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.15.
(3) Holders electing to have a Debt Security purchased shall be required to surrender the Debt Security, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Debt Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Debt Security purchased. Holders whose Debt Securities are purchased only in part shall be issued new Debt Securities equal in principal amount to the unpurchased portion of the Debt Securities surrendered.
(4) At the time the Company delivers Debt Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Debt Section. A Debt Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Debt Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Third Supplemental Indenture (Pioneer Natural Resources Co)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will 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 (including as such fair market value to the value of all non-cash consideration), as 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 CompanyAsset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the shares equity 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; provided that the amount of (A) 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 , Additional Assets or any Restricted Subsidiary combination thereof (other than liabilities that are by their terms subordinated to collectively, the Securities), that are assumed by the transferee of any such assets (provided that the Company “Cash Consideration”) or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, the fair market value of all forms of consideration other obligations or securities received by the 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 and (C) any Designated Noncash than Cash Consideration received by the Company or any of and its Restricted Subsidiaries since January 1, 2016 does not exceed in such Asset Disposition having an the aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) 10% of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured ACNTA at the time received and without of the applicable Asset Disposition (after giving effect to subsequent changes in valuesuch Asset Disposition), shall be deemed to be cash for purposes of this provision ; and for no other purpose; 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 any Disqualified Stock) of a Restricted 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 one year 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 one year 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) of this paragraph (a)(3) of this Section 4.07), to make an offer to the holders of the Securities Holders (and to holders of other Senior Subordinated Indebtedness Parity Lien Debt of the Company designated by the Company) to purchase Securities (and such other Senior Subordinated IndebtednessParity Lien Debt of the Company) pursuant to and subject to the conditions contained in this Indenture; and
(D) to , which purchase permanently reduces the extent of the balance outstanding amount of such Net Available Cash after application in accordance with clauses Securities (A), (Band such other Parity Lien Debt) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.07, the Company or such Restricted 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 paragraph (a) of this Section 4.07 the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this covenant except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this covenant exceeds $15.0 million. Pending application of Net Available Cash pursuant to this Section 4.074.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtednessIndebtedness (which may include Priority Lien Debt).
(b) Notwithstanding Section 4.07(a), the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with Section 4.07(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions, which is not applied in accordance with Section 4.07(a), exceeds $40.0 million during any calendar year. For the purposes of Section 4.07(a), the following are deemed to be cash or cash equivalents (i) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Securities or any Subsidiary Guarantee) that are assumed by the transferee of any such Asset Disposition 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 and (ii) any non-Cash Consideration received by the Company or any Restricted Subsidiary from the transferee that is converted, monetized, sold or exchanged by the Company or such Restricted Subsidiary into cash or cash equivalents within 120 days of receipt. Notwithstanding the foregoing, the 75% limitation referred to in Section 4.07(a)(2) shall be deemed satisfied with respect to any Asset Disposition in which the cash or cash equivalents portion of the consideration received therefrom, determined in accordance with the foregoing provision on an after-tax basis, is equal to or greater than what the after-tax proceeds would have been had such Asset Disposition complied with the aforementioned 75% limitation. The requirement of Section 4.07(a)(3)(B) shall be deemed to be satisfied if an agreement (including a lease, whether a capital lease or an operating lease) committing to make the acquisitions or expenditures referred to therein is entered into by the Company or its Restricted Subsidiary within the time period specified in such clause and such Net Available Cash is subsequently applied in accordance with such agreement within six months following such agreement.
(c) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated IndebtednessParity Lien Debt of the Company) pursuant to clause (3)(C) of paragraph (a) of Section 4.074.07(a)(3)(C), the Company will shall make such offer to purchase Securities on or before the 541st day after the later of the date of such Asset Disposition or the receipt of such Net Available Cash, and shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and if required or permitted by the terms of any other Parity Lien Debt, to the holders of such other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness Parity Lien Debt of the Company was issued with significant original issue discountdiscount greater than 2.5%, 100% of the accreted value thereof), ) without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated IndebtednessParity Lien Debt of the Company, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated IndebtednessParity Lien Debt of the Company) in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph Section 3.02. If the aggregate purchase price of the securities tendered exceeds the Net Available Cash allotted to their purchase, the Company shall select the securities to be purchased on a pro rata basis but in round denominations, which in the case of the Securities shall be minimum denominations of $2,000 principal amount and whole multiples of $1,000 in excess thereof. The Company shall not be required to make such an offer to purchase Securities (cand other Parity Lien Debt of the Company) pursuant to this Section 4.07 if the Net Available Cash not applied or invested as provided in Section 4.07(a)(3)(A) or (B) is less than $20.0 million (which lesser amount shall be carried forward for purposes of determining whether such an offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon completion of such an offer to purchase, Net Available Cash shall be deemed to be reduced by the aggregate amount of such offer.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of Sectionthe Exchange Act and any other securities laws or regulations in connection with the repurchase of Securities pursuant to Section 4.07(c). To the extent that the provisions of any securities laws or regulations conflict with provisions of Section 4.07(c), the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 4.07(c) by virtue of its compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Indenture (Denbury Resources Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and 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 (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 (including as to the value of all non-cash consideration), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition, as such fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) may be determined (and shall be determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $50.0 million) in good faith by the Company, whose determination shall be conclusive (including as to the value of all noncash consideration);
(2ii) in the case of any Asset Disposition (or series of related Asset Dispositions) having a fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) of $50.0 million or more, at least 7575.0% of the consideration thereof therefor (excluding, in the case of an Asset Disposition (or series of related Asset Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, that are not Indebtedness) received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents; provided that the amount of (A) any liabilities (as shown on the Company's or such 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for purposes of this provision and for no other purposecash; and
(3iii) an amount equal to 100100.0% (as may be adjusted pursuant to clause (3) of the last proviso to this Section 411(a)(iii)) of the Net Available Cash from such Asset Disposition is applied by the Company (or such any Restricted Subsidiary, as the case may be)) as follows:
(A) first, either (x) to the extent the Company elects (or is required by the terms of any Credit Facility Indebtedness, any Senior Indebtedness of the Company or any Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor), to prepay, repay, redeem repay or purchase Senior any such Indebtedness or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate a Restricted Subsidiary) within 365 days after the later of the Companydate of such Asset Disposition and the date of receipt of such Net Available Cash, or (y) to the extent the Company or such Restricted Subsidiary elects, to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Company or another Restricted Subsidiary) within one year 365 days from the later of the date of such Asset Disposition or and the date of receipt of such Net Available Cash, or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 365 days to complete the period of time necessary to complete such project;
(B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above (such balance, the “Excess Proceeds”), to make an offer to purchase Notes and (to the extent the Company or such Restricted Subsidiary elects, or is required by the terms thereof) to acquire Additional Assets within one year from the later purchase, redeem or repay any other Senior Indebtedness of the date of Company or a Restricted Subsidiary, pursuant and subject to Section 411(b) and Section 411(c) and the agreements governing such Asset Disposition or the receipt of such Net Available Cash;other Indebtedness; and
(C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) above (the aggregate of this paragraph (a)(3) of this Section 4.07any such amounts, “Declined Excess Proceeds”), to make an offer to the holders of the Securities fund (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance consistent with clauses (A), (B) and (C) any other applicable provision of this paragraph (aIndenture) of this Section 4.07, for any general corporate purpose permitted pursuant (including but not limited to the terms repurchase, repayment or other acquisition or retirement of this Indentureany Subordinated Obligations and the making of other Restricted Payments); provided, however, that (1) in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (AA)(x) or (CB) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently will retire such Indebtedness and shall will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; (2) the Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (A)(y) above with respect to such Asset Disposition; and (3) the foregoing percentage in this Section 411(a)(iii) shall be reduced to 50% if the Consolidated Total Leverage Ratio would be equal to or less than 3.00:1.00 after giving pro forma effect to any application of such Net Available Cash as set forth herein (any Net Available Cash in respect of Asset Dispositions not required to be applied in accordance with this clause (iii) as a result of the application of this proviso shall collectively constitute “Total Leverage Excess Proceeds”). Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 411, the Company and the Restricted Subsidiaries will shall not be required to apply any Net Available Cash or equivalent amount in accordance with this covenant Section 411 except to the extent that the aggregate Net Available Cash from all Asset Dispositions which or equivalent amount that is not applied in accordance with this covenant Section 411 (excluding all Total Leverage Excess Proceeds) exceeds $15.0 50.0 million. Pending application If the aggregate principal amount of Net Available Notes and/or other Indebtedness of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to clause (B) above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding principal amount of such Notes and the denominator of which is the sum of the outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. For the purposes of Section 411(a)(ii), the following are deemed to be cash: (1) Temporary Cash Investments and Cash Equivalents; (2) 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 payment of the principal amount of such Indebtedness in connection with such Asset Disposition; (3) 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 are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Disposition; (4) 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; (5) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary; (6) Additional Assets; and (7) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this Section 4.07clause, not to exceed an aggregate amount at any time outstanding equal to the greater of $150.0 million and 33.0% of Four Quarter Consolidated EBITDA (with the Fair Market Value of each item of Designated Noncash Consideration being measured on the date a legally binding commitment for such Net Available Cash shall be invested disposition (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtednessvalue).
(b) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) Notes pursuant to clause (3)(C) of paragraph (a) of Section 4.07411(a)(iii)(B), the Company will be required to purchase Securities Notes tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) Notes (the "“Offer"”) at a purchase price of 100100.0% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but and unpaid interest (or, in respect to the date of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) purchase in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph Section 411(c). If the aggregate purchase price of the Notes tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of Notes, the remaining Net Available Cash will be available to the Company for use in accordance with Section 411(a)(iii)(B) (to repay other Indebtedness of the Company or a Restricted Subsidiary) or Section 411(a)(iii)(C). The Company shall not be required to make an Offer for Notes pursuant to this Section 411 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 411(a)(iii)(A)) is less than $50.0 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). No Note will be repurchased in part if less than $2,000 in original principal amount of such Note would be left outstanding.
(c) The Company shall, not later than 45 days after the Company becomes obligated to make an Offer pursuant to this Section 411, send a notice to each Holder with a copy to the Trustee stating: (1) that an Asset Disposition that requires the purchase of Sectiona portion of the Notes has occurred and that such Holder has the right (subject to the prorating described below) to require the Company to purchase a portion of such Holder’s Notes at a purchase price in cash equal to 100.0% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant Interest Payment Date falling prior to or on the purchase date); (2) the repurchase date (which shall be no earlier than 10 days nor later than 60 days from the date such notice is sent); (3) the instructions determined by the Company, consistent with this Section 411, that a Holder must follow in order to have its Notes purchased; and (4) the amount of the Offer. If, upon the expiration of the period for which the Offer remains open, the aggregate principal amount of Notes surrendered by Holders exceeds the amount of the Offer, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000 or integral multiples of $1,000 in excess thereof shall be purchased).
(d) The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 411. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 411, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 411 by virtue thereof.
Appears in 1 contract
Samples: Indenture (Envision Healthcare Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will Parent and Issuer shall not, and will shall not permit any of their respective Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate any Asset Disposition unless:
(1i) the Company Parent, Issuer or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Companyapplicable Board of Directors, of the shares and assets subject to such Asset Disposition;
(2ii) in the case of any Asset Disposition, including a license of rights, (1) at least 7580% of the consideration thereof received by the Company Parent, Issuer or such Restricted Subsidiary is in the form of cash or cash equivalentsequivalents or (2) in the case only of license of rights, if after giving pro forma effect thereto, either (x) Parent and Issuer are able to Incur an additional $1 .00 of Indebtedness under Section 4.03(a); provided that the amount of or (y)
(A) 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 Consolidated Coverage Ratio improves after giving effect to the Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), transaction and (B) any notes, other obligations or securities received by the Company or such Restricted Subsidiary from such transferee aggregate book value of Issuer's assets that are converted by the Company or such Restricted Subsidiary into cash (subject to the extent licensing of the cash received) within 180 days following the closing of such Asset Disposition and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries rights made in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to reliance upon this clause (C2)(y) does not exceed 10% of this paragraph (a) Parent's consolidated total assets as of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time the end of receipt of such Designated Noncash Consideration (the most recent fiscal quarter for which financial statements have been either included in a report filed with the fair market value of each item of Designated Noncash Consideration being measured at SEC or filed with the time received and without giving effect to subsequent changes in value), shall be deemed to be cash for purposes of this provision and for no other purposeTrustee; and
(3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (Parent, Issuer or such Restricted Subsidiary, as the case may be):
(A) first, to the extent the Company Parent or Issuer elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness or Indebtedness (other than any Disqualified Stock) of a Restricted Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company Parent, Issuer or an any other Affiliate of the CompanyParent or Issuer) within one year 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 Company balance of such Net Available Cash after application in accordance with clause (A), to the extent Parent or Issuer elects, to acquire Additional Assets within 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) of this paragraph (a)(3) of this Section 4.07), to make an offer Offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the CompanyParent or Issuer) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (ASection 4.06(b), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.07above, the Company Parent, Issuer or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph .
(a) of this Section 4.07 the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this covenant except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is are not applied in accordance with this covenant Section 4.06(a) exceeds $15.0 million5,000,000. Pending application of Net Available Cash pursuant to this Section 4.074.06(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, the following are deemed to be cash or cash equivalents: (x) the assumption of Indebtedness of Parent, Issuer or any Restricted Subsidiary and the release of Parent, Issuer or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition; and (y) securities received by Parent, Issuer or any Restricted Subsidiary from the transferee that are promptly converted by Parent, Issuer or such Restricted Subsidiary into cash. To the extent that any or all of the Net Available Cash of any Foreign Asset Sale is prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Available Cash so affected shall not be required to be applied at the time provided above, but may be retained by the applicable Restricted Subsidiary so long, but only so long, as the applicable local law shall not permit repatriation to the United States (Parent or Issuer shall, subject to the following paragraph, promptly take or cause the applicable Restricted Subsidiary to promptly take all actions within their respective control by the applicable local law to permit such repatriation). Once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation shall be immediately effected and such repatriated Net Available Cash shall be applied in the manner set forth in this Section 4.06 as if such Asset Disposition had occurred on the date of such repatriation. To the extent that the Board of Directors determines, in good faith, that repatriation of any or all of the Net Available Cash of any Foreign Asset Sale would have an adverse tax or other consequence to Parent or Issuer, the Net Available Cash so affected may be retained outside of the United States for so long as such adverse tax or other consequence would continue. Such determination shall be reevaluated by the Board of Directors on an annual basis.
(b) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) of paragraph (a) of Section 4.074.06(a)(iii)(C), the Company will Issuer shall be required to purchase Securities tendered pursuant to an offer by the Company Issuer for the Securities (and such other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), ) without premium, premium plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) in accordance with the procedures (including prorating prorationing in the event of oversubscription) set forth in paragraph Section 4.06(c). If the aggregate purchase price of Securities (cand any other Senior Indebtedness) tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase thereof, Issuer shall be required to apply the remaining Net Available Cash in accordance with Section 4.06(a)(iii)(D). Issuer shall not be required to make an Offer to purchase Securities (and other Senior Indebtedness) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $5,000,000 (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after Issuer becomes obligated to make an Offer, Issuer shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by Issuer either in whole or in part (subject to prorating as hereinafter described in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of Issuer which Issuer in good faith believes will enable such Holders to make an informed decision (which at a minimum shall include (i) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of SectionIssuer or Parent, the most recent subsequently filed Quarterly Report on Form I0-Q and any Current Report on Form 8-K of Issuer or Parent filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (ii) a description of material developments in Issuer's business subsequent to the date of the latest of such Reports and (iii) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, Issuer shall deliver to the Trustee an Officers' Certificate as to (i) the amount of the Offer (the "Offer Amount"), (ii) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.06(a). On such date, Issuer shall also irrevocably deposit with the Trustee or with a paying agent (or, if Issuer is acting as its own paying agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase
Appears in 1 contract
Samples: Indenture (Warner Chilcott PLC)
Limitation on Sales of Assets and Subsidiary Stock. (a1) The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless:
(1a) 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 (including as to the value of all non-cash consideration)value, as determined in good faith by the CompanyBoard of Directors, of the shares and assets subject to such Asset Disposition;
(2b) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalentscash; provided that the following shall be deemed to be cash for purposes of this clause (b): (i) the amount of (A) any liabilities (as shown on the Company's 's, or such Restricted Subsidiary's '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 Securities), Securities or the Guarantees) that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto)assets, (Bii) the amount of any notes, other obligations or securities received by the 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 90 days following the closing of such Asset Disposition, (iii) the fair market value of any Telecommunications Assets received by the Company in such Asset Disposition and (Civ) the fair market value of any Designated Noncash Consideration Permitted Joint Venture Interests received by the Company or any of its Restricted Subsidiaries Subsidiary in such Asset Disposition having an Disposition; provided that the aggregate fair market value, when taken together with value of all other Designated Noncash Consideration Permitted Joint Venture Interests received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstandingiv), not to exceed $5.0 million at time of receipt of such Designated Noncash Consideration (with the fair market value of valued, in each item of Designated Noncash Consideration being measured case, at the time received and without giving effect to subsequent changes in value)of receipt, shall be deemed to be cash not exceed 10% of Consolidated Net Tangible Assets, (for purposes of this provision Section 4.06(1)(b), all determinations of fair market value shall be made in good faith by the Board of Directors and for no other purposeevidenced by an Officers' Certificate delivered to the Trustee); and
(3c) 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)):
(Ai) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem redeem, purchase or purchase otherwise acquire Senior Indebtedness of the Company or Indebtedness (other than any Disqualified Stock) of a Restricted Wholly Owned Subsidiary (in each case case, other than Indebtedness owed to the Company or an Affiliate of the CompanyCompany and other than Preferred Stock) within one year from 180 days of the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(Bii) second, to the extent of the balance of Net Available Cash after application in accordance with clause (i) of this Section 4.06(1)(c), to the extent the Company electsor such Restricted Subsidiary elects to or enters into a binding agreement to, to acquire reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with cash in an amount equal to the amount of Net Available Cash received by, or to be received by, the Company or another Restricted Subsidiary) within one year from 180 days of the later of the date of such Asset Disposition or the receipt of such Net Available Cash;; and
(Ciii) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (Ai) and (B) of this paragraph (a)(3ii) of this Section 4.074.06(l)(c), to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) Offer to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained set forth in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph (a2) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenturebelow; provided, however, that 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; provided, however that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (Ai) or (C) of this paragraph (aiii) of this Section 4.074.06(1)(c), the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph .
(a1) of this Section 4.07 the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this covenant except to the extent that the aggregate Net Available Cash from all Asset Dispositions which that is not applied in accordance with this covenant Section 4.06(1) exceeds $15.0 million. Pending application of Net Available Cash pursuant to this Section 4.07, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness10,000,000.
(b2) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) of paragraph (ac)(iii) of Section 4.074.06(1), the Company will shall be required to offer to purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) (the an "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but and unpaid interest (orthereon, and Additional Amounts in respect of such other Senior Subordinated Indebtedness, such lesser pricethereof, if any, as may be provided for by to the terms date of such Senior Subordinated Indebtedness) purchase in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph Section 4.06(3) and to purchase other Senior Subordinated Indebtedness on the terms and to the extent contemplated thereby. The Company will not be required to make an Offer for Securities (and other Senior Subordinated Indebtedness) pursuant to this Section 4.06 if the Net Available Cash available therefor (after application of the proceeds as provided in clauses (c)(i) and (c)(ii) of Section 4.06(1)) is less than $10,000,000 for any particular Asset Disposition (which lesser amount 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).
(a) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as hereinafter described in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum shall include (i) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form l0-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (ii) a description of material developments in the Company's business subsequent to the date of the latest of such reports, and (iii) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the address referred to in clause (c).
(b) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers' Certificate as to (i) the amount of the Offer (the "Offer Amount"), (ii) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.06(1). On such date, the Company shall also irrevocably deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust) an amount equal to the Offer Amount to be invested in Temporary Cash Investments and to be held for payment in accordance with the provisions of this Section 4.06. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancelation the Securities or portions thereof that have been properly tendered to and are to be accepted by the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the Offer Amount delivered by the Company to the Trustee is greater than the purchase price of the Securities (and other Senior Subordinated Indebtedness) tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(c) Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of Sectionthe Holder, the principal amount of the Security which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Security purchased. If at the expiration of the Offer Period the aggregate principal amount of Securities and any other Senior Subordinated Indebtedness included in the Offer surrendered by holders thereof exceeds the Offer Amount, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Securities and other Senior Subordinated Indebtedness in denominations of $1,000, or integral multiples thereof, shall be purchased). Holders whose Securities are purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(d) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section 4.06. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(4) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Securities pursuant to this Section 4.06. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.06, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue thereof.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will 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 value, as determined in good faith by the Board of Directors (including as to the value of all non-cash consideration), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition;
(2) Disposition and at least 7585% 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 equivalents; provided that the amount of (A) 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for purposes of this provision and for no other purposeCash 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 (or is required by the terms of any IndebtednessSenior Indebtedness of the Company), to prepay, repay, redeem repay or purchase Senior Indebtedness or Indebtedness (other than any Disqualified Stock) of a Wholly Owned Subsidiary or such Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Companya Subsidiary) within one year 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 application in accordance with clause (A), at the Company's election to the investment by the Company electsor any Wholly Owned Subsidiary or such Restricted Subsidiary in assets to replace the assets that were the subject of such Asset Disposition or an asset that (as determined in good faith by the Board of Directors) will be used in the business of the Company and the Wholly Owned Subsidiaries existing on the Issue Date or in businesses reasonably related thereto ("Replacement Assets"), to acquire Additional Assets in each case within one year from the later of 270 days from 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 in accordance with clauses (A) and (B) of this paragraph (a)(3) of this Section 4.07), to make an offer to the holders of the Securities purchase Notes at par (and to holders of any other Senior Subordinated Indebtedness designated by the Company, at a price no greater than par) to purchase Securities (plus accrued and such other Senior Subordinated Indebtedness) pursuant to unpaid interest; and subject to the conditions contained in this Indenture; 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) the acquisition by the Company or any Wholly Owned Subsidiary or such Restricted Subsidiary of Tangible Property to be used in the business of the Company and the Wholly Owned Subsidiaries existing on the Issue Date or such Restricted Subsidiary or in businesses reasonably related thereto or (y) the prepayment, repayment or purchase of Indebtedness (other than any Disqualified Stock) of this paragraph the Company (aother than Indebtedness owed to a Subsidiary of the Company) or Indebtedness of this Section 4.07, for any general corporate purpose permitted pursuant Subsidiary (other than Indebtedness owed to the terms Company or a Subsidiary of this Indenturethe Company), in each case within 270 days from the later of the receipt of such Net Available Cash and the date the offer is consummated; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A), (C) or (CD) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 Section, the Company and the its Restricted Subsidiaries will shall not be required to apply any Net Available Cash in accordance with this covenant Section except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is are not applied in accordance with this covenant Section exceeds $15.0 2.5 million. Pending application of Net Available Cash pursuant to this Section 4.07Section, such Net Available Cash shall be invested in Temporary Cash Investments Permitted Investments. For the purposes of this Section 4.17, the following are deemed to be cash or applied to temporarily reduce revolving credit indebtednesscash equivalents: (x) the express assumption of Indebtedness of the Company or any Restricted Subsidiary and (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 120 days of closing the transaction.
(b) In the event of an Asset Disposition that requires the purchase of the Securities Notes (and other Senior Subordinated IndebtednessIndebtedness of the Company) pursuant to clause (3)(C) of paragraph (a) of Section 4.074.17(a)(ii)(C), the Company will shall be required to purchase Securities Notes tendered pursuant to an offer by the Company for the Securities Notes (and such other Senior Subordinated IndebtednessIndebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, ) plus accrued but unpaid interest (or, in respect of such other Senior Subordinated IndebtednessIndebtedness of the Company, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated IndebtednessIndebtedness of the Company) in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph Section 4.17(c). If the aggregate purchase price of Notes (cand any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase thereof, the Company shall be required to apply the remaining Net Available Cash in accordance with Section 4.17(a)(ii)(D). The Offer shall remain open for a period of 20 Business Days. The Company shall not be required to make an Offer to purchase Notes (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.17 if the Net Available Cash available therefor is less than $2,500,000 (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 30 days after the Company becomes obligated to make an Offer, the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Notes purchased by the Company either in whole or in part (subject to prorating as hereinafter described in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision.
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (i) the amount of the Offer (the "Offer Amount"), (ii) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.17(a). Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Offer Amount, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section.
(3) Holders electing to have a Note purchased shall be required to surrender the Note, with an appropriate form duly completed, to the Company at the address specified in the notice at least two Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than 3:00 p.m., New York City time, one Business Day prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Offer Period the aggregate principal amount of Notes surrendered by Holders exceeds the Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis taking into account any other tendered Senior Subordinated Indebtedness which is the subject of such offer (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased). Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(4) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Note shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue thereof.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless:
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 Fair Market Value, as determined in good faith by the Board of Directors, the determination of which shall be evidenced by a Board Resolution (including as to the value of all non-cash consideration), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition;
; (2ii) at least 7585% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents; provided that the amount of (Aiii) 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 delivers an Officers' Certificate to the Securities), Trustee certifying that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 complies with clauses (i) and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause ii); and (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for purposes of this provision and for no other purpose; 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 IndebtednessSenior Indebtedness or the 10 5/8% Notes), to prepay, repay, redeem repay or purchase Senior Indebtedness or Indebtedness (including the 10 5/8% Notes but other than any Disqualified Preferred Stock) of a Restricted Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year 270 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 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 another Restricted Subsidiary) within one year 270 days 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 in accordance with clauses (A) and (B) of this paragraph (a)(3) of this Section 4.07such balance being the "Excess Proceeds"), to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) Offer to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenturefollowing two paragraphs; provided, however, however that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 provision, the Company and the its Restricted Subsidiaries will shall not be required to apply any Net Available Cash in accordance with this covenant provision except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is are not applied in accordance with this covenant exceeds provision exceed $15.0 million15 million (taking into account income earned on any Excess Proceeds). Pending application of Net Available Cash pursuant to this Section 4.07provision, such Net Available Cash shall be invested in Temporary Cash Investments Investments. Upon an Event of Loss incurred by the Company or any of its Restricted Subsidiaries, the Net Available Cash received from such Event of Loss shall be applied in the same manner as proceeds from Asset Dispositions described above and pursuant to temporarily reduce revolving credit indebtednessthe procedures set forth in Section 4.06(c) below.
(b) In the event of an Asset Disposition or Event of Loss that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) of paragraph (a) of Section 4.074.06(a)(iv)(C), the Company will be required to purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) (the "Offer") which offer shall be in the amount of the Allocable Excess Proceeds (as defined below), at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by to the terms of such Senior Subordinated Indebtedness) Purchase Date in accordance with the procedures (including prorating prorationing in the event of oversubscriptionover subscription) set forth in paragraph the next paragraph. If the aggregate purchase price of Securities tendered pursuant to the Offer is less than the Allocable Excess Proceeds, the Company may use the remaining Net Available Cash in its general operations and the amount of Excess Proceeds will be reset to zero. The Company shall not be required to make an Offer for Securities pursuant to this provision if the Excess Proceeds are less than $15 million for any particular Asset Disposition or Event of Loss (cwhich 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 or Event of Loss). "Allocable Excess Proceeds" means the product of (x) the Excess Proceeds and (y) a fraction, the numerator of Sectionwhich is the aggregate principal amount of the Securities outstanding on the date of the Offer and the denominator of which is the sum of the aggregate principal amount of the Securities outstanding on the date of the Offer and the aggregate principal amount of other Indebtedness of the Company outstanding on the date of the Offer that is pari passu in right of payment with the Securities and subject to terms and conditions in respect of Asset Dispositions similar in all material respects to the covenant described hereunder and requiring the Company to make an offer to purchase such Indebtedness substantially at the same time as the Offer.
Appears in 1 contract
Samples: Indenture (Rio Hotel & Casino Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time (including by way of such Asset Disposition relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (including as such fair market value to be determined on the value date of all non-cash considerationcontractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors of the Company, of the 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, if the property or assets sold or otherwise disposed of have a fair market value in excess of $50.0 million (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration thereof from such Asset Disposition (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 Subsidiary, as the case may be, is in the form of cash or cash equivalents; provided that the amount of (A) any liabilities (as shown on the Company's or such 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for purposes of this provision and for no other purposeCash Equivalents; and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such any Restricted Subsidiary, as the case may be):
(Ai) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness), ) (A) to prepay, repay, redeem repay or purchase Senior any Indebtedness of a Non-Guarantor or Indebtedness (other than any Disqualified Stock) of that is secured by a Restricted Subsidiary Lien (in each case case, other than Indebtedness owed to the Company or an Affiliate of any Restricted Subsidiary) including Indebtedness under the CompanyCredit Agreement (or any Refinancing Indebtedness in respect thereof) within one year 540 days from the later of (1) the date of such Asset Disposition or and (2) the receipt of such Net Available Cash;
(B) to the extent the Company elects, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(C) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) of this paragraph (a)(3) of this Section 4.07, to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (A) or (C) of this paragraph (a) of this Section 4.07i), the Company or such Restricted Subsidiary shall permanently will retire such Indebtedness and shall will 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 ; or (B) to prepay, repay or purchase Pari Passu Indebtedness at a price of no more than 100% of the foregoing provisions principal amount of this paragraph (a) such Pari Passu Indebtedness plus accrued and unpaid interest to the date of this Section 4.07 such prepayment, repayment or purchase; provided further that, to the extent the Company redeems, repays or repurchases Pari Passu Indebtedness pursuant to this clause (B), the Issuers shall equally and ratably reduce obligations under the Notes as provided under Section 5.7, through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth 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 prepaid, excluding the date of prepayment;
(ii) to the extent the Company or such Restricted Subsidiaries Subsidiary elects to invest in or commit to invest 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 540days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, that a binding agreement to make an investment of Additional Assets shall be treated as a permitted application of the Net Available Cash from the date of such commitment; provided further that (x) in the event such binding agreement is later canceled or terminated for any reason before such Net Available Cash is so applied, the Company or such Restricted Subsidiary may satisfy its obligation as to any Net Available Cash by entering into another binding agreement within 180 days of such cancellation or termination of the prior binding agreement (or, if later, 540 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash) and (y) if such investment is not consummated within the period set forth in clause (x) or such binding agreement is terminated, the Net Available Cash not so applied will not be required deemed to apply be Excess Proceeds (as defined below); provided that, pending the final application of any such Net Available Cash in accordance with clause (i) or clause (ii) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise use such Net Available Cash in any manner not prohibited by this Indenture.
(b) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 3.5(a) will be deemed to constitute “Excess Proceeds” under this Indenture. No later than the 541st day after an Asset Disposition or the receipt of such Net Available Cash, as applicable, if the aggregate amount of Excess Proceeds under this Indenture exceeds $50,000,000.00 in any calendar year (the Excess Proceeds in excess of such amount shall thereafter constitute, the “Asset Disposition Offer Amount”), the Issuers will within fifteen (15) Business Days make an offer (“Asset Disposition Offer”) to all Holders of Notes issued under this Indenture and, to the extent the Issuers elect, to all holders of other outstanding Pari Passu Indebtedness, to purchase the maximum principal amount of Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Asset Disposition Offer Amount, at an offer price in respect of the Notes in an amount equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof; provided, further, that at the election of the Issuers, no Asset Disposition Offer shall be required with respect to up to $300,000,000.00 of Asset Disposition Offer Amounts in the aggregate during the term of the Notes. The Issuers will deliver notice of such Asset Disposition Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC, describing the transaction or transactions that constitute the Asset Disposition and offering to repurchase the Notes for the specified purchase price on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by this Indenture and described in such notice.
(c) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Asset Disposition Offer Amount, the Issuers or any Restricted Subsidiary may use any remaining Asset Disposition Offer Amount for any purpose not prohibited by this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by Holders or lenders, collectively, exceeds the Asset Disposition Offer Amount, the Asset Disposition Offer Amount shall be allocated by the Issuers among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness, subject to adjustments so that no Note in an unauthorized amount remains outstanding. Upon completion of any Asset Disposition Offer, the Asset Disposition Offer Amount shall be reset at zero.
(d) To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than U.S. Dollars, the amount thereof payable shall not exceed the net amount of funds in U.S. Dollars that is actually received by the Issuers upon converting such portion into U.S. Dollars. Notwithstanding any other provisions of this covenant, (i) to the extent that any of or all the Net Available Cash of any Asset Disposition by a Foreign Subsidiary (a “Foreign Disposition”) is (x) prohibited or delayed by applicable local law, (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous organizational or administrative impediments from being repatriated to Luxembourg, the portion of such Net Available Cash so affected will not be required to be applied in compliance with this covenant, and such amounts may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law, applicable organizational documents or other agreement or other impediment will not permit repatriation to Luxembourg (the Issuers hereby agreeing to use reasonable efforts (as determined in the Issuers’ reasonable business judgment) to otherwise cause the applicable Foreign Subsidiary to within one year following the date on which the respective payment would otherwise have been required, promptly take all actions reasonably required by the applicable local law, applicable organizational document or other agreement or other impediment to permit such repatriation), and if within one year following the date on which the respective payment would otherwise have been required, such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, applicable organizational document or other agreement or other impediment, such repatriation will be promptly effected and such repatriated Net Available Cash will be promptly (and in any event not later than five (5) Business Days after such repatriation could be made) applied (net of additional Taxes payable or reserved against as a result thereof) (whether or not repatriation actually occurs) in compliance with this covenant except and (ii) to the extent that the aggregate Issuers have reasonably determined in good faith that repatriation of any of or all the Net Available Cash from all Asset Dispositions which is not applied in accordance of any Foreign Disposition would have a material adverse Tax consequence with this covenant exceeds $15.0 million. Pending application of respect to such Net Available Cash (which for the avoidance of doubt, includes, but is not limited to, any prepayment whereby in doing so the Issuers, any Restricted Subsidiary or any of its respective affiliates and/or equity partners would incur a tax liability, including a tax dividend, deemed dividend pursuant to Code Section 956 or a withholding tax), taking into account any foreign tax credit or benefit actually realized in connection with such repatriation, the Net Available Cash so affected may be retained by the applicable Foreign Subsidiary; provided that the Issuers shall use commercially reasonable efforts to eliminate such material adverse Tax consequences to permit such repatriation. The non-application of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default.
(e) For the purposes of Section 3.5(a)(2) hereof, the following will be deemed to be cash:
(i) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Company or a Restricted Subsidiary (other than Subordinated Indebtedness, Disqualified Stock of the Company or a Guarantor or Preferred Stock of a Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition and (ii) the cancelation or termination of Indebtedness or other liabilities contingent or otherwise of the Company or a Restricted Subsidiary in connection with such Asset Disposition (other than Subordinated Indebtedness, Disqualified Stock of the Company or a Guarantor, Preferred Stock of a Guarantor or intercompany debt owed to a Company or a Restricted Subsidiary);
(2) securities, notes or other obligations received by the Company or any Restricted Subsidiary of the Company from the transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Disposition;
(3) 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 are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition;
(4) consideration consisting of Indebtedness of the Company (other than Subordinated Indebtedness or Disqualified Stock) received after the Issue Date from Persons who are not the Company or any Restricted Subsidiary; and
(5) any Designated Non-Cash Consideration received by the Company or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this covenant that is at that time outstanding, not to exceed the greater of (i) $125.0 million and (ii) 25% of pro forma Consolidated EBITDA (with the amount of Consolidated EBITDA being measured at the time such disposition is made) at the time of the receipt of such Designated Non-Cash Consideration.
(f) The Issuers will comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Notes pursuant to this Section 4.07, such Net Available Cash shall be invested in Temporary Cash Investments 3.5. To the extent that the provisions of any securities laws or applied to temporarily reduce revolving credit indebtedness.
(b) In regulations conflict with the event provisions of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) of paragraph (a) of Section 4.07this Indenture, the Company Issuers will purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) in accordance comply with the procedures (including prorating applicable securities laws and regulations and shall not be deemed to have breached their obligations described in the event of oversubscription) set forth in paragraph (c) of Sectionthis Indenture by virtue thereof.
Appears in 1 contract
Samples: Indenture (Trinseo S.A.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will Issuer shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, consummate 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 Fair Market Value (including as to the value of all non-cash consideration), as determined in good faith by at the Company, time of contractual agreement to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(2ii) 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; provided that the amount of (A) 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for purposes of this provision and for no other purpose; 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)Disposition,
(A) to the extent the Company Issuer elects (or is required by the terms of any Indebtedness), is used to prepay, repay, redeem or purchase Senior (i) Secured Indebtedness of the Issuer or a Subsidiary Guarantor or (ii) Indebtedness (other than any Disqualified Stock) of a Restricted 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 450 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; Table of Contents
(B) to the extent the Issuer elects (including with respect to the balance of such Net Available Cash after application (if any) in accordance with clause (A)) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
, is used to (Bi) to make an Investment in any one or more businesses (provided that such Investment in any business is in the extent the Company elects, to acquire Additional Assets within one year from the later form of the date acquisition of Capital Stock of such Asset Disposition business such that such business constitutes a Restricted Subsidiary), (ii) acquire assets, (iii) acquire property, or the receipt of such Net Available Cash;(iv) make capital expenditures, in each case, used or useful in a Related Business (collectively, “Additional Assets”); and
(C) to the extent of the balance of such Net Available Cash after application (if any) in accordance with clauses (A) and (B) and the expiration of this paragraph (a)(3) of this Section 4.07the time periods set forth therein, to make an offer to the holders Holders of the Securities Notes (and to holders of other Senior Subordinated Pari Passu Indebtedness of the Issuer designated by the CompanyIssuer) to purchase Securities Notes (and such other Senior Subordinated IndebtednessPari Passu Indebtedness of the Issuer) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant made to satisfy clause (A) or (C) of this paragraph (a) of this Section 4.07above, the Company Issuer or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding For the foregoing provisions of this paragraph (a) purposes of this Section 4.07 4.08, the Company following are deemed to be cash or cash equivalents:
(i) the assumption or discharge of any liabilities (as shown on the Issuer’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of the Issuer or such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of such assets and for which the Issuer and all of the Restricted Subsidiaries will not be required to apply have been released by all creditors in writing;
(ii) securities received by the Issuer or any Net Available Cash in accordance with this covenant except Restricted Subsidiary from the transferee that are converted by the Issuer or such Restricted Subsidiary within 180 days into cash, to the extent of cash received in that the aggregate Net Available Cash from conversion;
(iii) all Asset Dispositions which is not applied in accordance with this covenant exceeds $15.0 million. Pending application of Net Available Cash pursuant to this Section 4.07, such Net Available Cash shall be invested in Temporary Cash Investments or applied Investments; and
(iv) any Designated Noncash Consideration having an aggregate Fair Market Value that, when taken together with all other Designated Noncash Consideration previously received and then outstanding, does not exceed 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 temporarily reduce revolving credit indebtednesssubsequent changes in value) 3.0% of Total Assets.
(b) In the event of an Asset Disposition that requires an offer to purchase the purchase of the Securities Notes (and other Senior Subordinated IndebtednessPari Passu Indebtedness of the Issuer) pursuant to clause (3)(C) of paragraph (a) of Section 4.074.08(a)(iii)(C), the Company will Issuer shall purchase Securities Notes tendered pursuant to an offer by the Company Issuer for the Securities Notes (and such other Senior Subordinated Pari Passu Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph (c) of Section
Appears in 1 contract
Samples: Indenture (Amsurg Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unlessunless the following conditions are met:
(1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash noncash consideration), as determined in good faith by members of the Company’s senior management, of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Temporary Cash Investments or Replacement Assets or a combination of cash and cash equivalents, Temporary Cash Investments, and Replacement Assets; provided provided, however, that with respect to the amount sale of (A) any liabilities (one or more real estate properties, up to 75% of the consideration may consist of Indebtedness of the purchase of such real estate properties so long as shown such Indebtedness is secured by a first or second priority Lien on the Company's real estate property 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for purposes of this provision and for no other purpose; andproperties sold;
(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 Restricted Subsidiary or Indebtedness (other than any Disqualified Stock) of a Restricted any other Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year 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 application in accordance with clause (A), to the extent the Company elects, to make a capital expenditure or to acquire Additional Replacement Assets within 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 Excess Proceeds (A) and (B) of this paragraph (a)(3) of this Section 4.07as defined below), to make an offer to the holders Holders of the Securities Notes (and to holders of other Senior Subordinated Indebtedness of the Company designated by the Company) to purchase Securities Notes (and such other Senior Subordinated IndebtednessIndebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 ; provided further, however, the Company will be deemed to have complied with clause (B) above if and to the extent that, within 365 days after the later of the Asset Disposition or the receipt of Net Available Cash, the Company or any of its Restricted Subsidiaries will has entered into and not be required abandoned or rejected a binding agreement to apply any make a capital expenditure or to acquire Replacement Assets, and that such capital expenditure or acquisition is thereafter completed within 180 days after the end of such 365 day period. The Net Available Cash of an Asset Disposition not applied pursuant to clauses (3)(A) and (B) above constitute “Excess Proceeds.” Excess Proceeds of less than $5.0 million will be carried forward and accumulated. When accumulated Excess Proceeds equal or exceed such amount, the Company must, within 30 days, make an offer to purchase the Notes, in accordance with this covenant except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this covenant exceeds $15.0 millionclause (3)(C) above. Pending application of Net Available Cash pursuant to this Section 4.074.13, 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 4.13, 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
(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 180 days of receipt.
(b) In the event of an Asset Disposition that requires the purchase of the Securities Notes (and other Senior Subordinated IndebtednessIndebtedness of the Company) pursuant to clause (3)(Ca)(3)(C) of paragraph (a) of Section 4.07above, the Company will purchase Securities Notes tendered pursuant to an offer by the Company for the Securities Notes (and such other Senior Subordinated Indebtedness) (Indebtedness of the "Offer"Company) at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest interest, if any, (or, in respect of such other Senior Subordinated IndebtednessIndebtedness of the Company, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated IndebtednessIndebtedness of the Company) in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph this Indenture. If the aggregate purchase price of the securities tendered exceeds the Net Available Cash allotted to their purchase, the Company will select the securities to be purchased on a pro rata basis but in round denominations, which in the case of the Notes will be denominations of $2,000 principal amount or multiples of $1,000 greater thereof. The Company shall not be required to make such an offer to purchase Notes (and other Senior Indebtedness of the Company) pursuant to this Section 4.13 if the Excess Proceeds are less than $5.0 million (which lesser amount shall be carried forward for purposes of determining whether such an offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(c) The Company will comply, to the extent applicable, with the requirements of SectionSection 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Notes pursuant to this Section 4.13. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.13, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this clause by virtue of its compliance with such securities laws or regulations.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless:
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 value, as determined in good faith by the Board of Directors (including as to the value of all non-cash consideration), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition;
(2) 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 equivalents; provided that the amount of (A) 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 Securities)Cash Equivalents, that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for purposes of this provision and for no other purpose; 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 or Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year 360 days of such Asset Disposition, (y) at the Company's election to the investment by the Company or any 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 directly related to the business of the Company and the Restricted Subsidiaries existing on November 25, 2003, in each case within 360 days from the later of the date of such Asset Disposition Disposition, or (z) a combination of the receipt foregoing purposes within such 360-day period; (B) second, to the extent of the balance of such Net Available Cash;
Cash after application in accordance with clause (B) 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 within one year from any other Senior Subordinated Indebtedness designated by the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
Company, at a price no greater than par) plus accrued and 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) of this paragraph (a)(3) of this Section 4.07, to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of purposes otherwise not prohibited under this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (CB) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 4.17, the Company and the its Restricted Subsidiaries will shall not be required to apply any Net Available Cash in accordance with this covenant Section except to the extent that the aggregate Net Available Cash from all Asset Dispositions (including any Asset Dispositions made since November 25, 2003) which is are not applied in accordance with this covenant Section exceeds $15.0 25 million. Pending application of Net Available Cash pursuant to this Section 4.07Section, such Net Available Cash shall be invested in Temporary Cash Investments or applied used to temporarily reduce revolving credit indebtedness.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 there is no further recourse to the Company or any of the Restricted Subsidiaries with respect to such liabilities
(b) In the event of an Asset Disposition that requires the purchase of the Securities Notes (and other Senior Subordinated IndebtednessIndebtedness of the Company) pursuant to clause (3)(C) of paragraph (a) of Section 4.074.17(a)(ii)(B), the Company will purchase Securities Notes tendered pursuant to an offer by the Company for the Securities Notes (and such and, to the extent required, other Senior Subordinated IndebtednessIndebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, ) plus accrued but unpaid interest (or, in respect of such other Senior Subordinated IndebtednessIndebtedness of the Company, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated IndebtednessIndebtedness of the Company) in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph Section 4.17(c). If the aggregate purchase price of Notes (cand, to the extent required, any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase thereof, the Company shall be required to apply the remaining Net Available Cash in accordance with Section 4.17(a)(ii)(C). The Offer shall remain open for a period of 20 Business Days. The Company will not be required to make an Offer to purchase Notes (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.17 if the Net Available Cash available therefor is less than $10 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 30 days after the Company becomes obligated to make an Offer, the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Notes purchased by the Company either in whole or in part (subject to prorating as hereinafter described in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information which the Company in good faith believes will enable such Holders to make an informed decision.
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers' Certificate as to (i) the amount of the Offer (the "Offer Amount"), (ii) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.17(a). Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Offer Amount, the Trustee shall deliver the excess to the Company promptly after the expiration of the Offer Period for application in accordance with this Section.
(3) Holders electing to have a Note purchased shall be required to surrender the Note, with an appropriate form duly completed, to the Company at the address specified in the notice not later than 3:00 p.m., New York City time, two Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than 3:00 p.m., New York City time, two Business Days prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Offer Period the aggregate principal amount of Notes surrendered by Holders exceeds the Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis taking into account any other tendered Senior Subordinated Indebtedness which is the subject of such offer (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased). Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(4) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Note shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.17. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.17 by virtue thereof.
Appears in 1 contract
Samples: Indenture (Amida Industries Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless:
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 value, as determined in good faith by the Board of Directors (including as to the value of all non-cash consideration), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition;
(2) 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 equivalents; provided that the amount of (A) 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 Securities)Cash Equivalents, that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for purposes of this provision and for no other purpose; 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 or Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year 360 days of such Asset Disposition, (y) at the Company's election to the investment by the Company or any 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 directly related to the business of the Company and the Restricted Subsidiaries existing on March 31, 1998, in each case within 360 days from the later of the date of such Asset Disposition Disposition, or (z) a combination of the receipt foregoing purposes within such 360-day period; (B) second, to the extent of the balance of such Net Available Cash;
Cash after application in accordance with clauses (B) 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 within one year from any other Senior Subordinated Indebtedness designated by the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
Company, at a price no greater than par) plus accrued and 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) of this paragraph (a)(3) of this Section 4.07, to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph (a) of this Section 4.07, for any B),for general corporate purpose permitted pursuant to purposes otherwise not prohibited under the terms of this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (CB) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 Section, the Company and the its Restricted Subsidiaries will shall not be required to apply any Net Available Cash in accordance with this covenant Section except to the extent that the aggregate Net Available Cash from all Asset Dispositions (including any Asset Dispositions made since March 31, 1998) which is are not applied in accordance with this covenant Section exceeds $15.0 10 million. Pending application of Net Available Cash pursuant to this Section 4.07Section, such Net Available Cash shall be invested in Temporary Cash Investments or applied used to temporarily reduce revolving credit indebtedness.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 there is no further recourse to the Company or any of the Restricted Subsidiaries with respect to such liabilities
(b) In the event of an Asset Disposition that requires the purchase of the Securities Notes (and other Senior Subordinated IndebtednessIndebtedness of the Company) pursuant to clause (3)(C) of paragraph (a) of Section 4.074.17(a)(ii)(B), the Company will shall be required to purchase Securities Notes tendered pursuant to an offer by the Company for the Securities Notes (and such and, to the extent required, other Senior Subordinated IndebtednessIndebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, ) plus accrued but unpaid interest (or, in respect of such other Senior Subordinated IndebtednessIndebtedness of the Company, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated IndebtednessIndebtedness of the Company) in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph Section 4.17(c). If the aggregate purchase price of Notes (cand, to the extent required, any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase thereof, the Company shall be required to apply the remaining Net Available Cash in accordance with Section 4.17(a)(ii)(C). The Offer shall remain open for a period of 20 Business Days. The Company shall not be required to make an Offer to purchase Notes (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.17 if the Net Available Cash available therefor is less than $10 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 30 days after the Company becomes obligated to make an Offer, the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Notes purchased by the Company either in whole or in part (subject to prorating as hereinafter described in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information which the Company in good faith believes will enable such Holders to make an informed decision.
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers' Certificate as to (i) the amount of the Offer (the "Offer Amount"), (ii) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.17(a). Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Offer Amount, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section.
(3) Holders electing to have a Note purchased shall be required to surrender the Note, with an appropriate form duly completed, to the Company at the address specified in the notice not later than 3:00 p.m., New York City time, two Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than 3:00 p.m., New York City time, two Business Days prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Offer Period the aggregate principal amount of Notes surrendered by Holders exceeds the Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis taking into account any other tendered Senior Subordinated Indebtedness which is the subject of such offer (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased). Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(4) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Note shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue thereof.
Appears in 1 contract
Samples: Indenture (Terex Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless:
(1) the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time (including by way of such Asset Disposition relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (including as such fair market value to be determined on the value date of all non-cash considerationcontractually agreeing to such Asset Disposition), as determined in good faith by the CompanyIssuer, of the 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 (except to the extent the Asset Disposition is a Permitted Asset Swap), with a purchase price in excess of (x) prior to the Conversion Date, $150 million and (y) after the Conversion Date, the greater of $150.0 million and 5.5% of LTM EBITDA, at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents; provided that the amount of (A) any liabilities (as shown on the Company's or such 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market valueDisposition, when taken together with all other Designated Noncash Consideration received pursuant to this clause Asset Dispositions since the Issue Date (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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 valueon a cumulative basis), shall be deemed to be cash for purposes (including by way of this provision and for no relief from, or by any other purpose; and
(3Person assuming responsibility for, any liabilities, contingent or otherwise) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied received by the Company (Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents (which determination may be made by the Issuer, at its option, either (x) on the date of contractually agreeing to such Asset Disposition or (y) at the time the Asset Disposition is completed); and
(3) within 365 days from the later of (A) the 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 as set forth below, the “Proceeds Application Period”), an amount equal to such Net Available Cash is applied, to the extent the Issuer or any Restricted Subsidiary, as the case may be, elects:
(i) (a) to the extent the Company elects such Net Available Cash are from an Asset Disposition of Collateral (or is required by the terms of any Indebtedness)x) to reduce, to prepay, repay, redeem repay or purchase Senior Indebtedness or Indebtedness any First Lien Obligations (other than the Prepetition Credit Agreement and the Notes), including Indebtedness under the Credit Agreements (other than the Prepetition Credit Agreement) (or any Disqualified StockRefinancing Indebtedness in respect thereof); provided that the Issuer ratably offer to repurchase Notes (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer or Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, (y) to make an offer (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer or Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, or (z) to reduce, prepay, repay or purchase any Indebtedness of a Restricted Subsidiary Non-Guarantor (in each case case, other than Indebtedness owed to the Company Issuer or an Affiliate of the Company) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(B) to the extent the Company elects, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(C) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) of this paragraph (a)(3) of this Section 4.07, to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (Aany Restricted Subsidiary), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (A) or (C) of this paragraph (a) of this Section 4.07i), the Company Issuer or such Restricted Subsidiary shall permanently will retire such Indebtedness and shall will cause the related loan commitment (if anyother than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to be permanently reduced in an amount equal to the principal amount so reduced, prepaid, repaid or purchased. Notwithstanding ;
(b) to the foregoing provisions extent such Net Available Cash is from an Asset Disposition that does not constitute Collateral, (w) to reduce, prepay, repay or purchase any Indebtedness secured by a Lien on such asset, (x) to reduce, prepay, repay or purchase senior Indebtedness; provided, that the Issuer ratably offer to repurchase Notes (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer or Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, (y) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, or (z) to reduce, prepay, repay or purchase any Indebtedness of a Non-Guarantor (in each case, other than Indebtedness owed to the Issuer or any Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this paragraph clause (i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to be reduced in an amount equal to the principal amount so reduced, prepaid, repaid or purchased;
(a) to invest (including capital expenditures) in or commit to invest in Additional Assets (including by means of this Section 4.07 an investment in Additional Assets by a Restricted Subsidiary); or (b) to invest (including capital expenditures) in any one or more businesses (provided that any such business will be a Restricted Subsidiary), properties or assets that replace the Company and businesses, properties and/or assets that are the Restricted Subsidiaries will not be required to apply subject of such Asset Disposition, with any such investment made by way of a capital or other lease valued at the present value of the minimum amount of payments under such lease (as reasonably determined by the Issuer); provided, that the assets (including Capital Stock) acquired with the Net Available Cash in accordance with this covenant except of a disposition of Collateral are pledged as Collateral to the extent required under the Security Documents; provided, further, that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this covenant exceeds $15.0 million. Pending a binding agreement shall be treated as a permitted application of Net Available Cash pursuant from the date of such commitment with the good faith expectation that an amount equal to this Section 4.07, 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 (ban “Acceptable Commitment”) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) of paragraph (a) of Section 4.07, the Company will purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (orand, in the event of any Acceptable Commitment is later cancelled or terminated for any reason before such other Senior Subordinated Indebtedness was issued with significant original issue discountamount is applied in connection therewith, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of then such other Senior Subordinated Indebtedness, such lesser price, if anyApplicable Proceeds shall constitute Collateral Excess Proceeds or Excess Proceeds, as the case may be provided for by the terms of such Senior Subordinated Indebtedness) in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph (c) of Sectionbe; or
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless:
(1) the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time (including by way of such Asset Disposition relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (including as such fair market value to be determined on the value date of all non-cash considerationcontractually agreeing to such Asset Disposition), as determined in good faith by the CompanyIssuer, of the 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 (except to the extent the Asset Disposition is a Permitted Asset Swap), with a purchase price in excess of (x) prior to the Conversion Date, $150 million and (y) after the Conversion Date, the greater of $150.0 million and 5.5% of LTM EBITDA, at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents; provided that the amount of (A) any liabilities (as shown on the Company's or such 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market valueDisposition, when taken together with all other Designated Noncash Consideration received pursuant to this clause Asset Dispositions since the Issue Date (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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 valueon a cumulative basis), shall be deemed to be cash for purposes (including by way of this provision and for no relief from, or by any other purpose; and
(3Person assuming responsibility for, any liabilities, contingent or otherwise) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied received by the Company (Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents (which determination may be made by the Issuer, at its option, either (x) on the date of contractually agreeing to such Asset Disposition or (y) at the time the Asset Disposition is completed); and
(3) within 365 days from the later of (A) the 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 as set forth below, the “Proceeds Application Period”), an amount equal to such Net Available Cash is applied, to the extent the Issuer or any Restricted Subsidiary, as the case may be, elects:
(i) (a) to the extent such Net Available Cash are from an Asset Disposition of Collateral (w) to reduce, prepay, repay or purchase any First Lien Obligations, including Indebtedness under the Company elects Credit Agreements or the First Lien Notes (or is required by the terms of any IndebtednessRefinancing Indebtedness in respect thereof), (x) to reduce, prepay, repayrepay or purchase any Second Lien Obligations other than Second Lien Notes Obligations (or any Refinancing Indebtedness in respect thereof); provided that, if the Issuer shall so reduce, repay or repurchase such Second Lien Obligations, the Issuer ratably offer to repurchase Notes (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer or Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Senior Notes through open-market purchases or in privately negotiated transactions, (y) to make an offer (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer or Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, or (z) to reduce, prepay, repay or purchase any Indebtedness or Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary Non-Guarantor (in each case case, other than Indebtedness owed to the Company Issuer or an Affiliate of the Company) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(B) to the extent the Company elects, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(C) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) of this paragraph (a)(3) of this Section 4.07, to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (Aany Restricted Subsidiary), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (A) or (C) of this paragraph (a) of this Section 4.07), the Company Issuer or such Restricted Subsidiary shall permanently will retire such Indebtedness and shall will cause the related loan commitment (if anyother than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to be permanently reduced in an amount equal to the principal amount so reduced, prepaid, repaid or purchased. Notwithstanding ;
(b) to the foregoing provisions extent such Net Available Cash is from an Asset Disposition that does not constitute Collateral, (v) to reduce, prepay, repay or purchase any Indebtedness secured by a Lien on such asset, (w) to reduce, prepay, repay or purchase any First Lien Obligations, including Indebtedness under the Credit Agreements or the First Lien Notes (or any Refinancing Indebtedness in respect thereof) (x) to reduce, prepay, repay or purchase other senior Indebtedness; provided, that the Issuer ratably offer to repurchase Notes (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer or Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, (y) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, or (z) to reduce, prepay, repay or purchase any Indebtedness of a Non-Guarantor (in each case, other than Indebtedness owed to the Issuer or any Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this paragraph clause (b), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to be reduced in an amount equal to the principal amount so reduced, prepaid, repaid or purchased;
(a) to invest (including capital expenditures) in or commit to invest in Additional Assets (including by means of this Section 4.07 an investment in Additional Assets by a Restricted Subsidiary); or (b) to invest (including capital expenditures) in any one or more businesses (provided that any such business will be a Restricted Subsidiary), properties or assets that replace the Company and businesses, properties and/or assets that are the Restricted Subsidiaries will not be required to apply subject of such Asset Disposition, with any such investment made by way of a capital or other lease valued at the present value of the minimum amount of payments under such lease (as reasonably determined by the Issuer); provided, that the assets (including Capital Stock) acquired with the Net Available Cash in accordance with this covenant except of a disposition of Collateral are pledged as Collateral to the extent required under the Security Documents; provided, further, that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this covenant exceeds $15.0 million. Pending a binding agreement shall be treated as a permitted application of Net Available Cash pursuant from the date of such commitment with the good faith expectation that an amount equal to this Section 4.07, 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 (ban “Acceptable Commitment”) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) of paragraph (a) of Section 4.07, the Company will purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (orand, in the event of any Acceptable Commitment is later cancelled or terminated for any reason before such other Senior Subordinated Indebtedness was issued with significant original issue discountamount is applied in connection therewith, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of then such other Senior Subordinated Indebtedness, such lesser price, if anyApplicable Proceeds shall constitute Collateral Excess Proceeds or Excess Proceeds, as the case may be provided for by the terms of such Senior Subordinated Indebtedness) in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph (c) of Sectionbe; or
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless:
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 value, as determined in good faith by the Board of Directors (including as to the value of all non-cash consideration), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition;
(2) 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 equivalents; provided that the amount of (A) 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 Securities)Cash Equivalents, that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for purposes of this provision and for no other purpose; 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 or Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year 360 days of such Asset Disposition, (y) at the Company's election to the investment by the Company or any 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 directly related to the business of the Company and the Restricted Subsidiaries existing on March 29, 2001, in each case within 360 days from the later of the date of such Asset Disposition Disposition, or (z) a combination of the receipt foregoing purposes within such 360-day period; (B) second, to the extent of the balance of such Net Available Cash;
Cash after application in accordance with clause (B) 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 within one year from any other Senior Subordinated Indebtedness designated by the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
Company, at a price no greater than par) plus accrued and 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) of this paragraph (a)(3) of this Section 4.07, to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph (a) of this Section 4.07, for any B),for general corporate purpose permitted pursuant to purposes otherwise not prohibited under the terms of this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (CB) of this paragraph (a) of this Section 4.07above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 Section, the Company and the its Restricted Subsidiaries will shall not be required to apply any Net Available Cash in accordance with this covenant 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 is are not applied in accordance with this covenant Section exceeds $15.0 10 million. Pending application of Net Available Cash pursuant to this Section 4.07Section, such Net Available Cash shall be invested in Temporary Cash Investments or applied used to temporarily reduce revolving credit indebtedness.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 there is no further recourse to the Company or any of the Restricted Subsidiaries with respect to such liabilities
(b) In the event of an Asset Disposition that requires the purchase of the Securities Notes (and other Senior Subordinated IndebtednessIndebtedness of the Company) pursuant to clause (3)(C) of paragraph (a) of Section 4.074.17(a)(ii)(B), the Company will shall be required to purchase Securities Notes tendered pursuant to an offer by the Company for the Securities Notes (and such and, to the extent required, other Senior Subordinated IndebtednessIndebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, ) plus accrued but unpaid interest (or, in respect of such other Senior Subordinated IndebtednessIndebtedness of the Company, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated IndebtednessIndebtedness of the Company) in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph Section 4.17(c). If the aggregate purchase price of Notes (cand, to the extent required, any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase thereof, the Company shall be required to apply the remaining Net Available Cash in accordance with Section 4.17(a)(ii)(C). The Offer shall remain open for a period of 20 Business Days. The Company shall not be required to make an Offer to purchase Notes (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.17 if the Net Available Cash available therefor is less than $10 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 30 days after the Company becomes obligated to make an Offer, the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Notes purchased by the Company either in whole or in part (subject to prorating as hereinafter described in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information which the Company in good faith believes will enable such Holders to make an informed decision.
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers' Certificate as to (i) the amount of the Offer (the "Offer Amount"), (ii) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.17(a). Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Offer Amount, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section.
(3) Holders electing to have a Note purchased shall be required to surrender the Note, with an appropriate form duly completed, to the Company at the address specified in the notice not later than 3:00 p.m., New York City time, two Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than 3:00 p.m., New York City time, two Business Days prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Offer Period the aggregate principal amount of Notes surrendered by Holders exceeds the Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis taking into account any other tendered Senior Subordinated Indebtedness which is the subject of such offer (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased). Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(4) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Note shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue thereof.
Appears in 1 contract
Samples: Indenture (Terex Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time (including by way of such Asset Disposition relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (including as such fair market value to be determined on the value date of all non-cash considerationcontractually agreeing to such Asset Disposition), as determined in good faith by the Company, of the 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 (except to the extent the Asset Disposition is a Permitted Asset Swap), with a purchase price in excess of the greater of $100.0 million and 25% of LTM EBITDA, at least 75% of the consideration thereof 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 Subsidiary, as the case may be, is in the form of cash or cash equivalentsCash Equivalents; provided that and
(3) within 450 days from the amount later of (A) any liabilities the date of such Asset Disposition and (B) the receipt of the Net Available Cash from such Asset Disposition (as shown on may be extended by an Acceptable Commitment as set forth below, the Company's or “Proceeds Application Period”), an amount equal to 100% of such Restricted Subsidiary's most recent balance sheet or in Net Available Cash is applied, to the notes thereto) of extent the Company or any Restricted Subsidiary Subsidiary, as the case may be, elects:
(i) (a) to reduce, prepay, repay or purchase any Secured Indebtedness or Indebtedness under the Credit Agreement (or any Refinancing Indebtedness in respect thereof), (b) to reduce, prepay, repay or purchase Pari Passu Indebtedness; provided that (other than liabilities that are by their terms subordinated Indebtedness described in clause (a) above) the Company ratably repays the Notes, (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 or purchase Notes through open-market purchases or in privately negotiated transactions, or (d) to reduce, prepay, repay or purchase any Indebtedness of a Non-Guarantor (in each case, other than Indebtedness owed to the SecuritiesCompany or any Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (i), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released will retire such Indebtedness and will cause the related commitment (other than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to be reduced in an amount equal to the principal amount so reduced, prepaid, repaid or purchased;
(a) to invest (including capital expenditures) in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary); or (b) to invest (including capital expenditures) in any one or more businesses, properties or assets that replace the businesses, properties and/or assets that are the subject of such Asset Disposition, with any such investment made by way of a capital or other lease valued at the present value of the minimum amount of payments under such lease (as reasonably determined by the Company); provided, however, that a binding agreement shall be treated as a permitted application of Net Available Cash from all liability the date of such commitment with the good faith expectation that an amount equal to Net Available Cash will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”); or
(iii) any combination of the foregoing; provided that (1) pending the final application of the amount of any such Net Available Cash pursuant to this Section 3.5, the Company or the applicable Restricted Subsidiaries may apply such Net Available Cash temporarily to reduce Indebtedness (including under the Credit Facilities) or otherwise apply such Net Available Cash in any manner not prohibited by this Indenture, and (2) the Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (ii) above with respect theretoto such Asset Disposition. If, with respect to any Asset Disposition, at the expiration of the Proceeds Application Period with respect to such Asset Disposition, there remains Net Available Cash in excess of the greater of $100.0 million and 25% of LTM EBITDA (such amount of Net Available Cash that is equal to the greater of $100.0 million and 25% of LTM EBITDA, “Declined Excess Proceeds,” and such amount of Net Available Cash that is in excess of the greater of $100 million and 25% of LTM EBITDA, “Excess Proceeds”), then subject to the limitations with respect to Foreign Dispositions set forth below, the Company shall make an offer (Ban “Asset Disposition Offer”) no later than ten business days after the expiration of the Proceeds Application Period to all Holders of Notes and, if required by the terms of any notesPari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, to purchase the maximum principal amount of such Notes and Pari Passu Indebtedness, as appropriate, on a pro rata basis, that may be purchased out of such Excess Proceeds, if any, at an offer price, in the case of the Notes, in cash in an amount equal to 100% of the principal amount thereof (or in the event such other obligations Indebtedness was issued with original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest, if any (or securities such lesser price with respect to Pari Passu Indebtedness, if any, as may be provided by the terms of such other Indebtedness), to, but not including, the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture and the agreement governing the Pari Passu Indebtedness, as applicable, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. Notices of an Asset Disposition Offer shall be sent by first class mail or sent electronically, at least 10 days but not more than 60 days before the purchase date to each Holder of the Notes at such Holder’s registered address or otherwise in accordance with the applicable procedures of DTC, with a copy to the Trustee. The Company may satisfy the foregoing obligation with respect to the Net Available Cash by making an Asset Disposition Offer prior to the expiration of the Proceeds Application Period (the “Advance Offer”) with respect to all or a part of the Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture.
(b) To the extent that the aggregate amount (or accreted value, as applicable) of Notes and, if applicable, any other Pari Passu Indebtedness validly tendered or otherwise surrendered in connection with an Asset Disposition Offer made with Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) is less than the amount offered in an Asset Disposition Offer, the Company may include any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) in Declined Excess Proceeds, and use such Declined Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of the Notes or, if applicable, Pari Passu Indebtedness validly tendered pursuant to any Asset Disposition Offer exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Company shall allocate the Excess Proceeds among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount (or accreted value, as applicable) of tendered Notes and Pari Passu Indebtedness; provided that no Notes or other Pari Passu Indebtedness will be selected and purchased in an unauthorized denomination. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(c) To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than Dollars, the amount thereof payable in respect of the Notes shall not exceed the net amount of funds in Dollars that is actually received by the Company upon converting such portion into Dollars.
(d) Notwithstanding any other provisions of this Section 3.5,
(i) to the extent that any of or all the Net Available Cash of any Asset Disposition received or deemed to be received by a Foreign Subsidiary (a “Foreign Disposition”) is (x) prohibited or delayed by applicable local law, (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous organizational or administrative impediments, in each case, from being repatriated to the United States, the portion of such Net Available Cash so affected will not be required to be applied in compliance with this Section 3.5, and such amounts may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law, documents or agreements will not permit repatriation to the United States (the Company hereby agreeing to use reasonable efforts (as determined in the Company’s reasonable business judgment) to otherwise cause the applicable Foreign Subsidiary to within one year following the date on which the respective payment would otherwise have been required, promptly take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation), and if within one year following the date on which the respective payment would otherwise have been required, such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, applicable organizational impediment or other impediment, such repatriation will be promptly effected and the amount of such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation could be made) applied (net of additional Taxes payable or reserved against as a result thereof) (whether or not repatriation actually occurs) in compliance with this Section 3.5; and
(ii) to the extent that the Company has determined in good faith that repatriation of any of or all the Net Available Cash of any Foreign Disposition would have an adverse Tax consequence (which for the avoidance of doubt, includes, but is not limited to, any prepayment out of such Net Available Cash where by doing so the Company, any of its Subsidiaries, any Parent Entity or any of their respective affiliates and/or equity owners would incur a Tax liability, including a Tax dividend, deemed dividend pursuant to Code Section 956 or a withholding Tax), the Net Available Cash so affected may be retained by the applicable Foreign Subsidiary. The non-application of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default.
(e) For the purposes of Section 3.5(a)(2) hereof, the following will be deemed to be cash:
(1) the assumption by the transferee of Indebtedness or other liabilities, contingent or otherwise of the Company or a Restricted Subsidiary (other than Disqualified Stock or Subordinated Indebtedness of the Company or a Guarantor or Preferred Stock of a Guarantor) or the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition;
(2) securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash and Cash Equivalents (to the extent of the cash or Cash Equivalents received) ), in each case, within 180 days following the closing of such Asset Disposition Disposition;
(3) 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 are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition;
(C4) consideration consisting of Indebtedness of the Company (other than Disqualified Stock or Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company or any Restricted Subsidiary; and
(5) any Designated Noncash Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries Subsidiary in such Asset Disposition Dispositions having an aggregate fair market value, when taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 3.5 that is at that time outstanding, not to exceed the greater of $5.0 100.0 million at time and 25% of receipt of such Designated Noncash Consideration LTM EBITDA (with the fair market value of each item of Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(f) To the extent that the provisions of any securities laws, rules or regulations, including Rule 14e-1 under the Exchange Act, conflict with the provisions of this Indenture, the Company shall not be deemed to be cash for purposes have breached its obligations described in this Indenture by virtue of compliance therewith.
(g) The provisions of this provision and for no other purpose; 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) Indenture relative to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness or Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(B) to the extent the Company elects, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(C) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) of this paragraph (a)(3) of this Section 4.07, ’s obligation to make an offer to repurchase the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) of this paragraph (a) of this Section 4.07, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this covenant except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this covenant exceeds $15.0 million. Pending application of Net Available Cash pursuant to this Section 4.07, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness.
(b) In the event Notes as a result of an Asset Disposition that requires may be waived or modified with the purchase written consent of the Securities (and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) Holders of paragraph (a) of Section 4.07, the Company will purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their majority in aggregate principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph (c) of SectionNotes then outstanding.
Appears in 1 contract
Samples: Indenture (TripAdvisor, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company Borrower will not, and will not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless:
(1i) the Company Borrower 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 (including as to the value of all non-cash consideration), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition, as such fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) may be determined (and shall be determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of the greater of $67,500,000 and 25.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated financial statements of the Borrower are available) in good faith by the Borrower, whose determination shall be conclusive (including as to the value of all noncash consideration);
(2ii) in the case of any Asset Disposition (or series of related Asset Dispositions) having a fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) in excess of the greater of $67,500,000 and 25.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated financial statements of the Borrower are available, at least 7575.00% of the consideration thereof therefor (excluding, in the case of an Asset Disposition (or series of related Asset Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, that are not Indebtedness) received by the Company Borrower or such Restricted Subsidiary is in the form of cash or cash equivalents; provided that the amount of (A) any liabilities (as shown on the Company's or such 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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), shall be deemed to be cash for purposes of this provision and for no other purposecash; and
(3iii) to the extent required by Subsection 8.4(b), an amount equal to 100100.00% of the Net Available Cash from such Asset Disposition is applied by the Company Borrower (or such any Restricted Subsidiary, as the case may be)) as provided therein.
(Ab) In the event that on or after the Closing Date the Borrower or any Restricted Subsidiary shall make an Asset Disposition or a Recovery Event in respect of Collateral shall occur, subject to Subsection 8.4(a), an amount equal to 100.00% of the Net Available Cash from such Asset Disposition or Recovery Event shall be applied by the Borrower (or any Restricted Subsidiary, as the case may be) as follows:
(i) first, either (x) if the Borrower or such Restricted Subsidiary elects, to the extent such Asset Disposition or Recovery Event is an Asset Disposition or Recovery Event of assets that constitute ABL Priority Collateral, to purchase, redeem, repay or prepay, to the extent the Company elects (Borrower or any Restricted Subsidiary is required by the terms of any Indebtedness)thereof, to prepay, repay, redeem Indebtedness under the Senior ABL Facility or purchase Senior Indebtedness or Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary (in each the case of letters of credit, bankers’ acceptances or other than similar instruments issued thereunder) cash collateralize any such Indebtedness owed to within the Company or an Affiliate of the Company) within one year from time period required by such Indebtedness after the later of the date of such Asset Disposition or Recovery Event, as the case may be, and the date of receipt of such Net Available Cash;
Cash or (By) to the extent the Company elects, Borrower or such Restricted Subsidiary elects (by delivery of an officer’s certificate by a Responsible Officer to acquire the Administrative Agent) to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary) with an amount equal to Net Available Cash received by the Borrower or another Restricted Subsidiary within one year from (a) 365 days after the later of the date of such Asset Disposition or Recovery Event, as the case may be, and the date of receipt of such Net Available CashCash (such period the “Reinvestment Period”) or, (b) if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 365 days to complete and is subject to a binding written commitment entered into during the Reinvestment Period, an additional 180 days after the last day of the Reinvestment Period (it being understood and agreed that if no such investment is made within the Reinvestment Period as extended by this clause (b), the Borrower shall make the prepayments required by Subsection 8.4(b)(ii) on the earlier to occur of (I) the last day of such Reinvestment Period as extended by this clause (b) and (II) the date the Borrower elects not to pursue such investment);
(Cii) second, (1) if no application of Net Available Cash election is made pursuant to preceding clause (i) with respect to such Asset Disposition or Recovery Event or (2) if such election is made to the extent of the balance of such Net Available Cash or equivalent amount after application in accordance with clauses Subsection 8.4(b)(i), within ten Business Days after the end of the Reinvestment Period specified in clause (i) above (as extended pursuant to clause (y) of such clause (i)) (x) to the extent such Asset Disposition or Recovery Event is an Asset Disposition or Recovery Event of assets that constitute Collateral, to purchase, redeem, repay, prepay, make an offer to prepay or repurchase, or deliver a notice of redemption, in accordance with Subsection 4.4(e)(i) (subject to Subsection 4.4(h)) or the agreements or instruments governing the relevant Indebtedness described in clause (B) below subject to any provision under such agreement or instrument analogous to Subsection 4.4(h)), as applicable, (A) the Term Loans and (B) to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof any Pari Passu Indebtedness on a pro rata basis with the Term Loans and (y) to the extent such Asset Disposition is an Asset Disposition of this paragraph (a)(3) of this Section 4.07assets that do not constitute Collateral, to purchase, redeem, repay, prepay, make an offer to prepay or repurchase, or deliver a notice of redemption, in accordance with Subsection 4.4(e)(i) (subject to Subsection 4.4(h)) or the holders of agreements or instruments governing any relevant Indebtedness permitted under Subsection 8.1 (subject to any provision under such agreement or instrument analogous to Subsection 4.4(h)), as applicable, (A) the Securities Term Loans and (and B) to holders of other Senior Subordinated Indebtedness designated the extent the Borrower or any Restricted Subsidiary is required by the Company) to purchase Securities terms thereof, any other Indebtedness (and such other Senior Subordinated Indebtedness) pursuant to and subject than Indebtedness subordinated in right of payment to the conditions contained in this IndentureTerm Loan Facility Obligations) on a pro rata basis with the Term Loans; and
(Diii) third, to the extent of the balance of such Net Available Cash or equivalent amount after application in accordance with clauses (A), (BSubsections 8.4(b)(i) and (Cii) above, to fund (to the extent consistent with any other applicable provision of this paragraph (aAgreement) of this Section 4.07, for any general corporate purpose permitted pursuant (including but not limited to the terms repurchase, repayment or other acquisition or retirement of this IndentureJunior Debt); provided, however, that in connection with any prepayment, repayment repayment, purchase or purchase redemption of Indebtedness pursuant to clause (Aii) or (C) of this paragraph (a) of this Section 4.07above, the Company Borrower or such Restricted Subsidiary shall permanently will retire such Indebtedness and shall will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid repaid, purchased or purchased. redeemed; provided, further, that the Borrower (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that, such investment shall be made no earlier than the earliest of notice of the relevant Asset Disposition to the Administrative Agent, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with Subsection 8.4(b)(i) above with respect to such Asset Disposition.
(c) Notwithstanding the foregoing provisions of this paragraph (a) of this Section 4.07 Subsection 8.4, the Company Borrower and the its Restricted Subsidiaries will shall not be required to apply any Net Available Cash or equivalent amount in accordance with this covenant Subsection 8.4 except to the extent that the aggregate Net Available Cash from all Asset Dispositions which and Recovery Events in respect of Collateral or equivalent amount that is not applied in accordance with this covenant Subsection 8.4 exceeds $15.0 million. Pending application of Net Available Cash pursuant to this Section 4.0754,000,000 (any amounts below such threshold, the “Below Threshold Proceeds”), in which case the Borrower and its Subsidiaries shall apply all such Net Available Cash shall from such Asset Dispositions and Recovery Events or equivalent amount in accordance with Subsection 8.4(b)(iii).
(d) For the purposes of Subsection 8.4(a)(ii), the following are deemed to be invested in cash: (1) Temporary Cash Investments and Cash Equivalents, (2) the assumption of Indebtedness of the Borrower (other than Disqualified Stock of the Borrower) or applied any Restricted Subsidiary and the release of the Borrower or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to temporarily reduce revolving credit indebtednessthe extent that the Borrower and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (4) securities received by the Borrower or any Restricted Subsidiary from the transferee that are converted by the Borrower or such Restricted Subsidiary into cash within 180 days, (5) consideration consisting of Indebtedness of the Borrower or any Restricted Subsidiary, (6) Additional Assets, and (7) any Designated Noncash Consideration received by the Borrower or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (7), not to exceed an aggregate amount at any time outstanding equal to the greater of $94,500,000 and 35.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated financial statements of the Borrower are available (with the Fair Market Value of each item of Designated Noncash Consideration being measured on the date a legally binding commitment for such Asset Disposition (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in value).
(be) In the event of an connection with any Asset Disposition permitted under this Subsection 8.4 or a Disposition that requires is excluded from the purchase definition of the Securities (and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) of paragraph (a) of Section 4.07“Asset Disposition”, the Company will purchase Securities tendered pursuant to an offer by Administrative Agent shall, and the Company for Lenders hereby authorize the Securities (Administrative Agent to, execute such releases of Liens and take such other Senior Subordinated Indebtedness) (actions as the "Offer") at a purchase price of 100% of their principal amount (or, Borrower may reasonably request in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) in accordance connection with the procedures (including prorating in the event of oversubscription) set forth in paragraph (c) of Sectionforegoing.
Appears in 1 contract
Samples: Incremental Term Loan Agreement (Floor & Decor Holdings, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless:
(1) the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time (including by way of such Asset Disposition relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (including as such fair market value to be determined on the value date of all non-cash considerationcontractually agreeing to such Asset Disposition), as determined in good faith by the CompanyIssuer, of the 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 (except to the extent the Asset Disposition is a Permitted Asset Swap), with a purchase price in excess of (x) prior to the Conversion Date, $150 million and (y) after the Conversion Date, the greater of $150.0 million and 5.5% of LTM EBITDA, at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents; provided that the amount of (A) any liabilities (as shown on the Company's or such 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 Securities), that are assumed by the transferee of any such assets (provided that the Company or such Restricted Subsidiary is released from all liability with respect thereto), (B) any notes, other obligations or securities received by the 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 and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market valueDisposition, when taken together with all other Designated Noncash Consideration received pursuant to this clause Asset Dispositions since the Issue Date (C) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $5.0 million at time of 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 valueon a cumulative basis), shall be deemed to be cash for purposes (including by way of this provision and for no relief from, or by any other purpose; and
(3Person assuming responsibility for, any liabilities, contingent or otherwise) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied received by the Company (Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents (which determination may be made by the Issuer, at its option, either (x) on the date of contractually agreeing to such Asset Disposition or (y) at the time the Asset Disposition is completed); and
(3) within 365 days from the later of (A) the 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 as set forth below, the “Proceeds Application Period”), an amount equal to such Net Available Cash is applied, to the extent the Issuer or any Restricted Subsidiary, as the case may be, elects:
(i) (a) to the extent the Company elects such Net Available Cash are from an Asset Disposition of Collateral (or is required by the terms of any Indebtedness)x) to reduce, to prepay, repay, redeem repay or purchase Senior Indebtedness or Indebtedness any First Lien Obligations (other than the Notes), including Indebtedness under the Credit Agreements and the Existing First Lien Notes (or any Disqualified StockRefinancing Indebtedness in respect thereof); provided that the Issuer ratably offer to repurchase Notes (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer or Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, (y) to make an offer (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer or Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, or (z) to reduce, prepay, repay or purchase any Indebtedness of a Restricted Subsidiary Non-Guarantor (in each case case, other than Indebtedness owed to the Company Issuer or an Affiliate of the Company) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(B) to the extent the Company elects, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(C) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) of this paragraph (a)(3) of this Section 4.07, to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (Aany Restricted Subsidiary), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (A) or (C) of this paragraph (a) of this Section 4.07i), the Company Issuer or such Restricted Subsidiary shall permanently will retire such Indebtedness and shall will cause the related loan commitment (if anyother than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to be permanently reduced in an amount equal to the principal amount so reduced, prepaid, repaid or purchased. Notwithstanding ;
(b) to the foregoing provisions extent such Net Available Cash is from an Asset Disposition that does not constitute Collateral, (w) to reduce, prepay, repay or purchase any Indebtedness secured by a Lien on such asset, (x) to reduce, prepay, repay or purchase senior Indebtedness; provided, that the Issuer ratably offer to repurchase Notes (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer or Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, (y) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, or (z) to reduce, prepay, repay or purchase any Indebtedness of a Non-Guarantor (in each case, other than Indebtedness owed to the Issuer or any Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this paragraph clause (i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to be reduced in an amount equal to the principal amount so reduced, prepaid, repaid or purchased;
(a) to invest (including capital expenditures) in or commit to invest in Additional Assets (including by means of this Section 4.07 an investment in Additional Assets by a Restricted Subsidiary); or (b) to invest (including capital expenditures) in any one or more businesses (provided that any such business will be a Restricted Subsidiary), properties or assets that replace the Company and businesses, properties and/or assets that are the Restricted Subsidiaries will not be required to apply subject of such Asset Disposition, with any such investment made by way of a capital or other lease valued at the present value of the minimum amount of payments under such lease (as reasonably determined by the Issuer); provided, that the assets (including Capital Stock) acquired with the Net Available Cash in accordance with this covenant except of a disposition of Collateral are pledged as Collateral to the extent required under the Security Documents; provided, further, that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this covenant exceeds $15.0 million. Pending a binding agreement shall be treated as a permitted application of Net Available Cash pursuant from the date of such commitment with the good faith expectation that an amount equal to this Section 4.07, 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 (ban “Acceptable Commitment”) In the event of an Asset Disposition that requires the purchase of the Securities (and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) of paragraph (a) of Section 4.07, the Company will purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (orand, in the event of any Acceptable Commitment is later cancelled or terminated for any reason before such other Senior Subordinated Indebtedness was issued with significant original issue discountamount is applied in connection therewith, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of then such other Senior Subordinated Indebtedness, such lesser price, if anyApplicable Proceeds shall constitute Collateral Excess Proceeds or Excess Proceeds, as the case may be provided for by the terms of such Senior Subordinated Indebtedness) in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph (c) of Sectionbe; or
Appears in 1 contract
