Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition of Collateral unless: (1) the Company or such Restricted Subsidiary, as the case may be, receives consideration 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 (including as to the value of all non-cash consideration), of the Collateral subject to such Asset Disposition (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraph); (2) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents and 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral Account; and (3) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Securities; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such other consideration as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such other consideration or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such other consideration (which Cash or Cash Equivalents may be withdrawn by the Company from the Collateral Account to be invested in Additional Assets in the manner set forth under this subsection (a)); provided, further, that prior to such pledge, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) in accordance with this clause (3), other property or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments of the Intercompany Note may be withdrawn by the Company to be invested by the Company in Additional Assets within 360 days from the later of the date of (x) such Asset Disposition, Recovery Event, Asset Swap or prepayments and (y) the receipt of such Net Available Cash, which Additional Assets are thereupon with their acquisition added to the Collateral securing the Notes; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such Additional Assets as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such Additional Assets or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such Additional Assets; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or deposit, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this paragraph, (ii) in accordance with this paragraph, other property or assets may be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All of the Net Available Cash received by the Company or such Restricted Subsidiary, as the case may be, from any Recovery Event shall be deposited directly into the Collateral Account and may be withdrawn by the Company or such Restricted Subsidiary to be invested in Additional Assets (which may include performance of a Restoration of the affected Collateral) in accordance with the preceding paragraph within 360 days from the receipt of such Net Available Cash. Any Net Available Cash from Asset Dispositions of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events or prepayments of the Intercompany Note that are not applied or invested as provided in this subsection (a) or in accordance with the Collateral Documents will be deemed to constitute "Excess Collateral Proceeds." On the 361st day after an Asset Disposition, Asset Swap, Recovery Event or prepayment of the Intercompany Note pursuant to this subsection (a), if the aggregate amount of Excess Collateral Proceeds exceeds $5.0 million, the Company will be required to make an offer ("Collateral Disposition Offer") to all holders of Securities to purchase the maximum principal amount of Securities to which the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Securities plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in this Indenture in integral multiples of $1,000. To the extent that the aggregate amount of Securities so validly tendered and not properly withdrawn pursuant to a Collateral Disposition Offer is less than the Excess Collateral Proceeds, the Company may use any remaining Excess Collateral Proceeds for general corporate purposes, free and clear of any Liens created by the Collateral Documents, subject to other covenants contained in this Indenture. If the aggregate principal amount of Securities surrendered by Holders thereof exceeds the amount of Excess Collateral Proceeds, the Trustee shall select the Securities to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered
Appears in 1 contract
Sources: Indenture (Imco Recycling Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make Subsidiary to consummate any Asset Disposition of Collateral unless:
unless (1i) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Disposition 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 (including as to the value of all non-cash noncash consideration), of the Collateral subject to such Asset Disposition (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraph);
(2) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents and 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral Account; and
(3) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Securities; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such other consideration as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to of the fair market value of such other consideration or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such other consideration (which Cash or Cash Equivalents may be withdrawn by the Company from the Collateral Account to be invested in Additional Assets in the manner set forth under this subsection (a)); provided, further, that prior shares and assets subject to such pledgeAsset Disposition, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) in accordance with this clause (3), other property or assets may be pledged as Collateral having the fair market value required by said clause, and (ii) in accordance with this clause at least 75% (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and that, 100% in the case of clause (i), (iilease payments) or (iii), all conditions precedent provided for in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments of the Intercompany Note may be withdrawn consideration thereof received by the Company to be invested by or such Restricted Subsidiary is in the Company in Additional Assets within 360 days from form of cash or cash equivalents. In the later of the date of (x) such Asset Disposition, Recovery Event, Asset Swap or prepayments event and (y) the receipt of such Net Available Cash, which Additional Assets are thereupon with their acquisition added to the Collateral securing the Notes; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such Additional Assets as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such Additional Assets or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such Additional Assets; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or deposit, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this paragraph, (ii) in accordance with this paragraph, other property or assets may be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All of the aggregate Net Available Cash received by the Company or any Restricted Subsidiary from one or more Asset Disposition occurring on or after the Issue Date exceeds $10,000,000, then the Company or such Restricted Subsidiary shall (A) within 360 days after the receipt of such Net Available Cash and to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Senior Indebtedness) to (1) apply an amount equal to such excess Net Available Cash to prepay, repay or purchase Senior Indebtedness of the Company or such Restricted Subsidiary, in each case owing to a Person other than the Company or 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 360 days after the end of such 360-day period) an equal amount, or the amount not so applied pursuant to clause (1), in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary) and (B) apply such excess Net Available Cash (to the extent not applied pursuant to clause (A)), to make an Offer (as defined below) to purchase Securities pursuant to and subject to the conditions of Section 4.06(b); provided, however, that in connection with any prepayment, repayment or purchase -------- ------- of Senior Indebtedness pursuant to clause (A) above, the Company or such Restricted Subsidiary shall 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; provided further, however, ---------------- ------- that the Company or such Restricted Subsidiary shall not be required to permanently reduce the related loan commitment in the case may beof any such prepayment, repayment or purchase with Net Available Cash from any Recovery Event Asset 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 shall constitute "Excess Proceeds". Pending application of Net Available Cash pursuant to this covenant, such Net Available Cash shall be deposited directly into invested in Temporary Cash Investments. For the Collateral Account 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 any Restricted Subsidiary (other than Indebtedness that by its terms is subordinated to the Notes or the applicable Subsidiary Guaranty) and may be withdrawn 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 to be invested in Additional Assets into cash.
(which may include performance b) In the event of a Restoration of the affected Collateral) in accordance with the preceding paragraph within 360 days from the receipt of such Net Available Cash. Any Net Available Cash from Asset Dispositions of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events or prepayments of the Intercompany Note that are not applied or invested as provided in this subsection (a) or in accordance with the Collateral Documents will be deemed to constitute "Excess Collateral Proceeds." On the 361st day after an Asset Disposition, Asset Swap, Recovery Event or prepayment Disposition that requires the purchase of the Intercompany Note Securities pursuant to this subsection clause (aB) of Section 4.06(a), if the aggregate amount of Excess Collateral Proceeds exceeds $5.0 million, the Company will shall be required to make purchase an offer ("Collateral Disposition Offer") to all holders of Securities to purchase the maximum 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, commenced within 30 days following the Collateral Disposition Offer applies that may be purchased out expiration of the Excess Collateral Proceedsapplicable period referred to clause (A) of Section 4.06(a) (or, if the Company so elects, at an offer any time within such period), by the Company for the Securities (the "Offer") at a purchase price in cash in an amount equal to of 100% of the their principal amount of the Securities plus accrued and unpaid interest interest, if any, to the date of 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 prorationing in the event of oversubscription) set forth in 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 (to the extent not otherwise prohibited by the Indenture). The Company shall not be required to make an Offer for Securities pursuant to this Indenture 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 $1,0001,000 of principal amount, at the applicable purchase price. To The notice shall specify a purchase date not less than 30 days nor more than 60 days after the extent 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 amount purchase price of the Securities so validly tendered and not properly withdrawn pursuant delivered by the Company to a Collateral Disposition Offer the Trustee is less than the Excess Collateral ProceedsOffer Amount, the Trustee shall deliver the excess to the Company may use any remaining Excess Collateral Proceeds immediately after the expiration of the Offer Period for general corporate purposesapplication in accordance with this Section.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, free and clear 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 any Liens created the Holder, the principal amount of the Security which was delivered for purchase by the Collateral Documents, subject Holder and a statement that such Holder is withdrawing his election to other covenants contained in this Indenturehave such Security purchased. If at the expiration of the Offer Period the aggregate principal amount of Securities surrendered by Holders thereof exceeds the amount of Excess Collateral ProceedsOffer Amount, the Trustee Company shall select the Securities to be purchased on a pro rata basis on (with such adjustments as may be deemed appropriate by the basis 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 aggregate principal amount 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 tenderedthis 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 of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition of Collateral unless:
unless (1) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Disposition 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 (including as to the value of all non-cash consideration), of the Collateral subject to such Asset Disposition (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraph);
(2) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents and 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral Account; and
(3) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Securities; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such other consideration as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; (2) at least equal to 75% of the fair market value of such other consideration or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such other consideration (which Cash or Cash Equivalents may be withdrawn thereof received by the Company from or such Restricted Subsidiary is in the Collateral Account to be invested in form of cash, cash equivalents, Additional Assets in the manner set forth under this subsection or any combination thereof (a"Permitted Consideration")); provided, further, that prior to such pledge, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) in accordance with this clause (3), other property or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments of the Intercompany Note may be withdrawn by the Company to be invested by the Company in Additional Assets within 360 days from the later of the date of (x) such Asset Disposition, Recovery Event, Asset Swap or prepayments and (y) the receipt of such Net Available Cash, which Additional Assets are thereupon with their acquisition added to the Collateral securing the Notes; provided, however, to the extent that the Credit Facility Collateral Documents restrict Company and its Restricted Subsidiaries shall be permitted to receive Property other than Permitted Consideration, so long as the Company's ability to pledge such Additional Assets as Collateral, the Company shall either pledge other property or assets as Collateral having a aggregate fair market value, as determined in the good faith by of the Board of Directors, of all such Property other than Permitted Consideration received from Asset Dispositions and held by the Company and the Restricted Subsidiaries at least any one time shall not exceed 10% of Adjusted Consolidated Net Tangible Assets; and (3) an amount equal to the fair market value of such Additional Assets or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such Additional Assets; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or deposit, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this paragraph, (ii) in accordance with this paragraph, other property or assets may be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All 100% of the Net Available Cash received 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), to make an Offer to the holders of the Debt Securities (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Debt Securities (and such other Senior Indebtedness) pursuant to and subject to the conditions of Section 4.15(b); provided, however, that in connection with any Recovery Event prepayment, repay ment or purchase of Indebtedness pursuant to clause (A) or (C) above, 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,
(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this Section 4.15(a) exceeds $20.0 million. Pending application of Net Available Cash pursuant to this Section 4.15(a), such Net Available Cash shall be deposited directly into invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the Collateral Account 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 may be withdrawn 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 to be invested in Additional Assets into cash.
(which may include performance b) In the event of a Restoration of the affected Collateral) in accordance with the preceding paragraph within 360 days from the receipt of such Net Available Cash. Any Net Available Cash from Asset Dispositions of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events or prepayments of the Intercompany Note that are not applied or invested as provided in this subsection (a) or in accordance with the Collateral Documents will be deemed to constitute "Excess Collateral Proceeds." On the 361st day after an Asset Disposition, Asset Swap, Recovery Event or prepayment Disposition that requires the purchase of the Intercompany Note Debt Securities (and other Senior Indebtedness pursuant to this subsection (aSection 4.15(a)(3)(C), if the aggregate amount of Excess Collateral Proceeds exceeds $5.0 million, the Company will be required shall purchase Debt Securities tendered pursuant to make an offer by the Company for the Debt Securities and such other Senior Indebtedness (the "Collateral Disposition Offer") to all holders at a purchase price of Securities to purchase the maximum 100% of their principal amount of Securities to which (or, in the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceedsevent such other Senior Indebtedness was issued with significant original issue discount, at an offer price in cash in an amount equal to 100% of the principal amount of the Securities accreted value thereof), without premium, plus accrued and but unpaid interest to (or, in respect of such other Senior Indebtedness, such lesser price, if any, as may be provided for by the date terms of purchase, such Senior Indebtedness in accordance with the procedures (including prorationing in the event of over subscription) set forth in this Indenture in integral multiples of $1,000. To the extent that the aggregate amount of Securities so validly tendered and not properly withdrawn pursuant to a Collateral Disposition Offer is less than the Excess Collateral Proceeds, the Company may use any remaining Excess Collateral Proceeds for general corporate purposes, free and clear of any Liens created by the Collateral Documents, subject to other covenants contained in this IndentureSection 4.15(c). If the aggregate principal amount purchase price of Debt Securities surrendered by Holders thereof (and any other Senior Indebtedness tendered pursuant to the Offer) exceeds the amount of Excess Collateral ProceedsNet Available Cash allotted to their purchase, the Trustee 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 basis 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 tenderedthe 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
Sources: 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 Subsidiaries to, directly or indirectly, make any Asset Disposition of Collateral unless:
(1i) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Disposition 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)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), of the Collateral shares and assets subject to such Asset Disposition (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraph)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; and
(iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition received is applied by the Company (or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents and 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral Account; and):
(3A) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Securities; provided, howeverfirst, to the extent that the Credit Facility Collateral Documents restrict Company or any Restricted Subsidiary elects (or is required by the terms of any Senior Indebtedness), to prepay, repay or purchase (x) Senior Indebtedness or (y) Indebtedness (other than any Disqualified Stock) of a Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company's ability to pledge such other consideration as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such other consideration or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such other consideration (which Cash or Cash Equivalents may be withdrawn by the Company from the Collateral Account to be invested in Additional Assets in the manner set forth under this subsection (a)); provided, further, that prior to such pledge, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) in accordance with this clause (3), other property or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments of the Intercompany Note may be withdrawn by the Company to be invested by the Company in Additional Assets within 360 180 days from the later of the date of (x) such Asset DispositionDisposition or the receipt of such Net Available Cash;
(B) second, Recovery Event, Asset Swap or prepayments and (y) within one year from the receipt of such Net Available Cash, which Additional Assets are thereupon with their acquisition added to the Collateral securing the Notes; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such Additional Assets as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such Additional Assets or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such Additional Assets; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or deposit, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this paragraph, (ii) in accordance with this paragraph, other property or assets may be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All of the Net Available Cash received by the Company or such Restricted Subsidiary, as the case may be, from any Recovery Event shall be deposited directly into the Collateral Account and may be withdrawn by the Company or such Restricted Subsidiary to be invested in Additional Assets (which may include performance of a Restoration of the affected Collateral) in accordance with the preceding paragraph within 360 days from the receipt balance of such Net Available Cash. Any Net Available Cash from Asset Dispositions of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events or prepayments of the Intercompany Note that are not applied or invested as provided in this subsection (a) or after application in accordance with the Collateral Documents will be deemed to constitute "Excess Collateral Proceeds." On the 361st day after an Asset Disposition, Asset Swap, Recovery Event or prepayment of the Intercompany Note pursuant to this subsection clause (aA), if at the aggregate amount of Excess Collateral Proceeds exceeds $5.0 million, the Company will be required to make an offer Company's election either ("Collateral Disposition Offer"x) to all holders the investment in or acquisition of Securities Additional Assets or (y) to prepay, repay or purchase the maximum principal amount of Securities to which the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Securities plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in this Indenture in integral multiples of $1,000. To the extent that the aggregate amount of Securities so validly tendered and not properly withdrawn pursuant to a Collateral Disposition Offer is less (1) Senior Indebtedness or (2) Indebtedness (other than the Excess Collateral Proceeds, the Company may use any remaining Excess Collateral Proceeds for general corporate purposes, free and clear of any Liens created by the Collateral Documents, subject to other covenants contained in this Indenture. If the aggregate principal amount of Securities surrendered by Holders thereof exceeds the amount of Excess Collateral Proceeds, the Trustee shall select the Securities to be purchased on a pro rata basis on the basis of the aggregate principal amount of tenderedDisqualified
Appears in 1 contract
Sources: Indenture (Ero Marketing Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition of Collateral unless:
unless (1i) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Disposition 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)value, as determined in good faith by the Board of Directors (including as to the value of all non-cash consideration), of the Collateral shares and assets subject to such Asset Disposition (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraph);
(2) at least 75% of the consideration from such Asset Disposition thereof received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents Equivalents, and (ii) an amount equal to 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral Account; and
(3) the remaining consideration from such Asset Disposition that is not in applied by the form of cash Company (or Cash Equivalents is thereupon with its acquisition pledged such Restricted Subsidiary, as Collateral to secure the Securities; providedcase may be) (A) first, however, (x) to the extent that the Credit Facility Collateral Documents restrict Company elects (or is required by the terms of any Senior Indebtedness), to prepay, repay or purchase Senior Indebtedness of the Company) within 360 days of such Asset Disposition, (y) at the Company's ability election to pledge such other consideration as Collateral, the investment by the Company shall either pledge other property or any Wholly Owned Subsidiary or such Restricted Subsidiary in long-term assets as Collateral having to replace the assets that were the subject of such Asset Disposition or a fair market value, 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 date of such Asset Disposition, or (z) a combination of the foregoing purposes within such 360-day period; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), to make a pro rata offer to purchase Notes at par (and, to the extent required by the instrument governing such Indebtedness, any other Senior Subordinated Indebtedness designated by the Company, at least 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),for general corporate purposes otherwise not prohibited under the Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (B) above, the Company or such Subsidiary shall retire such Indebtedness and cause the related loan commitment (if any) to be permanently reduced in an amount equal to the fair market value principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section, the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section except to the extent that the aggregate Net Available Cash from all Asset Dispositions (including any Asset Dispositions made since March 31, 1998) which are not applied in accordance with this Section exceeds $10 million. Pending application of Net Available Cash pursuant to this Section, such other consideration Net Available Cash shall be used to temporarily reduce Senior Indebtedness or deposit an amount invested in Cash Equivalents. For the purposes of this covenant, the following is deemed to be cash or Cash Equivalents into Equivalents: the Collateral Account having a value at least equal express assumption of Indebtedness (other than any Indebtedness that is by its terms subordinated to the fair market value Notes) of such other consideration (which Cash or Cash Equivalents may be withdrawn by the Company from or any Restricted Subsidiary, but only to the Collateral Account extent that such assumption is effected on a basis under which there is no further recourse to be invested in Additional Assets in the manner set forth under this subsection (a)); provided, further, that prior Company or any of the Restricted Subsidiaries with respect to such pledge, deposit or withdrawalliabilities
(b) In the event of an Asset Disposition that requires the purchase of Notes (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.17(a)(ii)(B), the Company shall be required to purchase Notes tendered pursuant to an offer by the Company for the Notes (and, to the extent required, other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (without premium) plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness of the Company, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 4.17(c). If the aggregate purchase price of Notes (and, 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 stating, as applicable, that to (i) in accordance with this clause the amount of the Offer (3), other property or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and that, in the case of clause (i"Offer Amount"), (ii) or (iii), all conditions precedent provided for in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments of the Intercompany Note may be withdrawn by the Company to be invested by the Company in Additional Assets within 360 days from the later of the date of (x) such Asset Disposition, Recovery Event, Asset Swap or prepayments and (y) the receipt of such Net Available Cash, which Additional Assets are thereupon with their acquisition added to the Collateral securing the Notes; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such Additional Assets as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such Additional Assets or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such Additional Assets; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or deposit, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this paragraph, (ii) in accordance with this paragraph, other property or assets may be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All allocation of the Net Available Cash received 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 or such Restricted Subsidiaryto the Trustee is less than the Offer Amount, as the case may be, from any Recovery Event Trustee shall be deposited directly into deliver the Collateral Account and may be withdrawn by excess to the Company or such Restricted Subsidiary to be invested in Additional Assets (which may include performance of a Restoration immediately after the expiration of the affected Collateral) Offer Period for application in accordance with the preceding paragraph within 360 days from the receipt of such Net Available Cash. Any Net Available Cash from Asset Dispositions of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events or prepayments of the Intercompany this Section.
(3) Holders electing to have a Note that are not applied or invested as provided in this subsection (a) or in accordance with the Collateral Documents will be deemed to constitute "Excess Collateral Proceeds." On the 361st day after an Asset Disposition, Asset Swap, Recovery Event or prepayment of the Intercompany Note pursuant to this subsection (a), if the aggregate amount of Excess Collateral Proceeds exceeds $5.0 million, the Company will purchased shall be required to make surrender the Note, with an offer ("Collateral Disposition Offer") appropriate form duly completed, to all holders of Securities 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 purchase the maximum principal amount of Securities Purchase Date. Holders shall be entitled to which withdraw their election if the Collateral Disposition Offer applies that may be purchased out 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 Excess Collateral ProceedsHolder, at an offer price in cash in an amount equal to 100% of the principal amount of the Securities plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in this Indenture in integral multiples of $1,000. To the extent that the aggregate amount of Securities so validly tendered and not properly withdrawn pursuant to a Collateral Disposition Offer is less than the Excess Collateral Proceeds, the Company may use any remaining Excess Collateral Proceeds Note which was delivered for general corporate purposes, free and clear of any Liens created purchase by the Collateral Documents, subject Holder and a statement that such Holder is withdrawing his election to other covenants contained in this Indenturehave such Note purchased. If at the expiration of the Offer Period the aggregate principal amount of Securities Notes surrendered by Holders thereof exceeds the amount of Excess Collateral ProceedsOffer Amount, the Trustee Company shall select the Securities Notes to be purchased on a pro rata basis on taking into account any other tendered Senior Subordinated Indebtedness which is the basis 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 aggregate principal amount 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 tenderedthis 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
Sources: Indenture (Terex Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition of Collateral unless:
(1) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Disposition 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 (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the Collateral shares and assets subject to such Asset Disposition (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraph)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 or Additional Assets; PROVIDED that the Company will not need to comply with this clause (2) with respect to an Asset Disposition consisting of all or substantially all of the assets used in its Connectivity Solutions business; and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition received is applied by the Company (or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents and 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral Account; and)
(3A) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Securities; provided, howeverFIRST, to the extent that the Credit Facility Collateral Documents restrict 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 Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company's ability to pledge such other consideration as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such other consideration or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such other consideration (which Cash or Cash Equivalents may be withdrawn by the Company from the Collateral Account to be invested in Additional Assets in the manner set forth under this subsection (a)); provided, further, that prior to such pledge, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) in accordance with this clause (3), other property or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments of the Intercompany Note may be withdrawn by the Company to be invested by the Company in Additional Assets within 360 days one year from the later of the date of (x) such Asset Disposition, Recovery Event, Asset Swap Disposition or prepayments and (y) the receipt of such Net Available Cash;
(B) SECOND, which 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 are thereupon with their acquisition added 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 Collateral securing extent of the Notesbalance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders of the Notes (and to Holders of other Senior Indebtedness of the Company designated by the Company) to purchase Notes (and such other 45 Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in Section 4.07(b); providedPROVIDED, howeverHOWEVER, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, the Company or such Restricted Subsidiary shall permanently 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 Section 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 Credit Facility Collateral Documents restrict the Company's ability to pledge such Additional Assets as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such Additional Assets or deposit an amount of cash or aggregate Net Available Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such Additional Assets; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or deposit, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this paragraph, (ii) all Asset Dispositions which is not applied in accordance with this paragraphcovenant exceeds $75,000,000. Pending application of Net Available Cash pursuant to this covenant, other property such Net Available Cash shall be invested in Temporary Cash Investments or assets may applied to temporarily reduce any short-term loans or any revolving credit Indebtedness, 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 pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into Equivalents:
(1) the Collateral Account having the fair market value required by said paragraph and that, in the case assumption of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All Indebtedness of the Net Available Cash 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 such any Restricted Subsidiary, as Subsidiary from the case may be, from any Recovery Event shall be deposited directly into the Collateral Account and may be withdrawn transferee that are promptly converted by the Company or such Restricted Subsidiary to be invested in Additional Assets into cash.
(which may include performance b) In the event of a Restoration an Asset Disposition that requires the purchase of Notes (and other Senior Indebtedness of the affected CollateralCompany) in accordance with the preceding paragraph within 360 days from the receipt of such Net Available Cash. Any Net Available Cash from Asset Dispositions of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events or prepayments of the Intercompany Note that are not applied or invested as provided in this subsection (a) or in accordance with the Collateral Documents will be deemed to constitute "Excess Collateral Proceeds." On the 361st day after an Asset Disposition, Asset Swap, Recovery Event or prepayment of the Intercompany Note pursuant to this subsection (a), if the aggregate amount of Excess Collateral Proceeds exceeds $5.0 millionSection 4.10(a)(3)(C) above, the Company will be required purchase Notes tendered pursuant to make an offer (the "Collateral Disposition OfferEXCESS PROCEEDS OFFER") to all holders by the Company for the Notes (and such other Senior Indebtedness) at a purchase price of Securities to purchase the maximum 100% of their principal amount of Securities to which (or, in the Collateral Disposition Offer applies that may be purchased out event such other Senior Indebtedness of the Excess Collateral ProceedsCompany was issued with significant original issue discount, at an offer price in cash in an amount equal to 100% of the principal amount accreted value thereof) without premium, plus accrued but unpaid interest (or, in respect of such other Senior Indebtedness of the Securities plus accrued and unpaid interest to Company, such lesser price, if any, as may be provided for by the date terms of purchase, such Senior 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 (and other Senior Indebtedness of the Company) pursuant to this Indenture 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 $1,0001,000 of principal amount, at the applicable purchase price. To The notice shall specify a purchase date not less than 30 days nor more than 60 days after the extent 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) 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), 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 amount purchase price of Securities so validly tendered the Notes and not properly withdrawn pursuant other Senior Indebtedness delivered by the Company to a Collateral Disposition Offer the Trustee is less than the Excess Collateral ProceedsOffer Amount, the Trustee shall deliver the excess to the Company may use any remaining Excess Collateral Proceeds 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 general corporate purposes, free and clear of any Liens created purchase by the Collateral Documents, subject Holder and a statement that such Holder is withdrawing his election to other covenants contained in this Indenturehave such Note purchased. If at the expiration of the Offer Period the aggregate principal amount of Securities Notes surrendered by Holders thereof exceeds the amount of Excess Collateral ProceedsOffer Amount, the Trustee Company shall select the Securities to be purchased on a pro rata basis on (with such adjustments as may be deemed appropriate by the basis 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 aggregate principal amount 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 tenderedthis 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 Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition of Collateral Sale unless:
(1i) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Sale 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 (including as to the value of all non-cash consideration), ) of the Collateral shares and assets subject to such Asset Disposition Sale (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be which fair market value shall be determined in good faith by the Board of Directors for purposes any transaction (or series of this paragraph);
(2transactions) involving in excess of $1,000,000) and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents and is received at the time of such sale and
(ii) an amount equal to 100% of the Net Available Cash from such Asset Disposition received Sale is applied by the Company (or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents and 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral Account; and):
(3A) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Securities; provided, howeverfirst, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such other consideration as Collateral, the Company shall either pledge other property elects (or assets as Collateral having a fair market value, as determined in good faith is required by the Board terms of Directors, at least equal to the fair market value of such other consideration or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such other consideration (which Cash or Cash Equivalents may be withdrawn by the Company from the Collateral Account to be invested in Additional Assets in the manner set forth under this subsection (a)); provided, further, that prior to such pledge, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) in accordance with this clause (3any Senior Indebtedness), other property to prepay, repay, redeem or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and thatpurchase Senior Indebtedness and, in the case of any Senior Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility, within 180 days from the date of such Asset Sale and
(B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (iA), to the extent the Company elects, and within 180 days from the date of such Asset Sale, to:
(ii1) 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
(iii)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, all conditions precedent provided for at the time it becomes a Restricted Subsidiary, engaged in this Indenture to such pledge, deposit or withdrawal have been complied with. a Related Business.
(b) Any Net Available Cash deposited into not applied within 180 days after the Collateral Account from any consummation of an Asset Dispositions of Collateral, Recovery Events Sale as provided in clauses (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments of the Intercompany Note may be withdrawn by the Company to be invested by the Company in Additional Assets within 360 days from the later of the date of (x) such Asset Disposition, Recovery Event, Asset Swap or prepayments and (y) the receipt of such Net Available Cash, which Additional Assets are thereupon with their acquisition added to the Collateral securing the Notes; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such Additional Assets as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such Additional Assets or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such Additional Assets; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or deposit, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this paragraph, (ii) in accordance with this paragraph, other property or assets may be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case of clause (i), (iiA) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All B) of the Net Available Cash received by the Company or such Restricted Subsidiary, as the case may be, from any Recovery Event shall be deposited directly into the Collateral Account and may be withdrawn by the Company or such Restricted Subsidiary to be invested in Additional Assets (which may include performance of a Restoration of the affected Collateral) in accordance with the preceding paragraph within 360 days from the receipt of such Net Available Cash. Any Net Available Cash from Asset Dispositions of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events or prepayments of the Intercompany Note that are not applied or invested as provided in this subsection (a) or in accordance with the Collateral Documents above will be deemed to constitute "Excess Collateral Proceeds." On the 361st day after an Asset Disposition, Asset Swap, Recovery Event or prepayment of the Intercompany Note pursuant to this subsection (a), if When the aggregate amount of Excess Collateral Proceeds exceeds $5.0 million, the Company will be required to make an offer to all Holders (an "Collateral Disposition Asset Sale Offer") ), to all holders of Securities to purchase purchase, on a pro rata basis the maximum principal amount of Securities Notes equal in amount to which the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral ProceedsProceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at an offer a purchase price in cash in an amount equal to 100% of the principal amount of the Securities thereof plus accrued and unpaid interest and Liquidated Damages thereon to the date of purchasepurchase (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 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 that only Notes in denominations of $1,000 or integral multiples of $1,000. To the extent that thereof shall be purchased.
(ii) If the aggregate principal amount of Securities so validly Notes tendered and not properly withdrawn pursuant to a Collateral Disposition such Asset Sale Offer is less than the Excess Collateral Proceeds, the Company may use any remaining Excess Collateral Proceeds following the completion of the Asset Sale Offer for general corporate purposespurposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, free and clear the amount of any Liens created by the Collateral DocumentsExcess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to other covenants contained any subsequent Asset Sale.
(c) 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 Indenturecovenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its 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 the 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 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 Securities surrendered by Holders thereof exceeds all Notes timely tendered pursuant to the Asset Sale Offer;
(ii) the Asset Sale Offer Amount, the amount of Excess Collateral ProceedsProceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "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 4.11.
(f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof; (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the 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 Notes 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 select act as the Securities 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 Certificated Note, a 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 purchased on in a pro rata basis on the basis of the aggregate principal amount of tendered$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 provided in Section 2.05(c) hereof.
(i) 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 4.11. 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
Sources: Indenture (Galey & Lord Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition of Collateral unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors (including as to of the value of all non-cash consideration)Company, of the Collateral shares and assets subject to such Asset Disposition (notwithstanding including, for the foregoingavoidance of doubt, the consideration received by the Company or any of its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraphif 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 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, as the case may be, is in the form of cash or Cash Equivalents and Equivalents; and
(3) an amount equal to 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral Account; and
(3) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Securities; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such other consideration as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such other consideration or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such other consideration (which Cash or Cash Equivalents may be withdrawn by the Company from the Collateral Account to be invested in Additional Assets in the manner set forth under this subsection (a)); provided, further, that prior to such pledge, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) in accordance with this clause (3), other property or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments of the Intercompany Note may be withdrawn by the Company to be invested by the Company in Additional Assets within 360 days from the later of the date of (x) such Asset Disposition, Recovery Event, Asset Swap or prepayments and (y) the receipt of such Net Available Cash, which Additional Assets are thereupon with their acquisition added to the Collateral securing the Notes; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such Additional Assets as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such Additional Assets or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such Additional Assets; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or deposit, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this paragraph, (ii) in accordance with this paragraph, other property or assets may be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All of the Net Available Cash received applied by the Company or such any Restricted Subsidiary, as the case may be:
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, from elects (or is required by the terms of any Recovery Event shall be deposited directly into the Collateral Account and may be withdrawn Indebtedness) (A) to prepay, repay or purchase any Indebtedness of a Non-Guarantor or Indebtedness that is secured by a Lien (in each case, other than Indebtedness owed to the Company or such any Restricted Subsidiary to be invested Subsidiary) including Indebtedness under the Credit Agreement (or any Refinancing Indebtedness in Additional Assets (which may include performance of a Restoration of the affected Collateralrespect thereof) in accordance with the preceding paragraph within 360 540 days from the later of (1) the date of such Asset Disposition and (2) the receipt of such Net Available Cash. ; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (i), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be reduced in an amount equal to the principal amount so prepaid, repaid or purchased; or (B) to prepay, repay or purchase Pari Passu Indebtedness at a price of no more than 100% of the principal amount of such Pari Passu Indebtedness plus accrued and unpaid interest to the date of 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 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 be deemed to 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 of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events that is not applied or prepayments of the Intercompany Note that are not invested or committed to be applied or invested as provided in this subsection (aSection 3.5(a) or in accordance with the Collateral Documents will be deemed to constitute "“Excess Collateral Proceeds." On ” under this Indenture. No later than the 361st 541st day after an Asset DispositionDisposition or the receipt of such Net Available Cash, Asset Swap, Recovery Event or prepayment of the Intercompany Note pursuant to this subsection (a)as applicable, if the aggregate amount of Excess Collateral Proceeds under this Indenture exceeds $5.0 million50,000,000.00 in any calendar year (the Excess Proceeds in excess of such amount shall thereafter constitute, the Company “Asset Disposition Offer Amount”), the Issuers will be required to within fifteen (15) Business Days make an offer ("Collateral “Asset Disposition Offer"”) to all Holders of Notes issued under this Indenture and, to the extent the Issuers elect, to all holders of Securities other outstanding Pari Passu Indebtedness, to purchase the maximum principal amount of Securities Notes and any such Pari Passu Indebtedness to which the Collateral Asset Disposition Offer applies that may be purchased out of the Excess Collateral ProceedsAsset Disposition Offer Amount, at an offer price in cash respect of the Notes in an amount equal to 100% of the principal amount of the Securities Notes and Pari Passu Indebtedness, in each case, plus accrued and unpaid interest to 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 $1,0001,000 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 Securities Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to a Collateral an Asset Disposition Offer is less than the Excess Collateral ProceedsAsset Disposition Offer Amount, the Company Issuers or any Restricted Subsidiary may use any remaining Excess Collateral Proceeds Asset Disposition Offer Amount for general corporate purposes, free and clear of any Liens created purpose not prohibited by the Collateral Documents, subject to other covenants contained in this Indenture. If the aggregate principal amount of Securities the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by Holders thereof or lenders, collectively, exceeds the amount of Excess Collateral ProceedsAsset Disposition Offer Amount, the Trustee Asset Disposition Offer Amount shall select be allocated by the Securities 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 tenderedtendered 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 and (ii) to the extent that the Issuers have reasonably determined in good faith that repatriation of any of or all the Net Available Cash of any Foreign Disposition would have a material adverse Tax consequence with 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 3.5. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuers will comply with the applicable securities laws and regulations and shall not be deemed to have breached their obligations described in this Indenture by virtue thereof.
Appears in 1 contract
Sources: Indenture (Trinseo S.A.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition of Collateral unless:
unless (1) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Disposition 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 (including as to the value of all non-cash consideration), of the Collateral subject to such Asset Disposition (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraph);
(2) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents and 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral Account; and
(3) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Securities; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such other consideration as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; (2) at least equal to 75% of the fair market value of such other consideration or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such other consideration (which Cash or Cash Equivalents may be withdrawn thereof received by the Company from or such Restricted Subsidiary is in the Collateral Account to be invested in form of cash, cash equivalents, Additional Assets in the manner set forth under this subsection or any combination thereof (a"Permitted Consideration")); provided, further, that prior to such pledge, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) in accordance with this clause (3), other property or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments of the Intercompany Note may be withdrawn by the Company to be invested by the Company in Additional Assets within 360 days from the later of the date of (x) such Asset Disposition, Recovery Event, Asset Swap or prepayments and (y) the receipt of such Net Available Cash, which Additional Assets are thereupon with their acquisition added to the Collateral securing the Notes; provided, however, to the extent that the Credit Facility Collateral Documents restrict Company and its Restricted Subsidiaries shall be permitted to receive Property other than Permitted Consideration, so long as the Company's ability to pledge such Additional Assets as Collateral, the Company shall either pledge other property or assets as Collateral having a aggregate fair market value, as determined in the good faith by of the Board of Directors, of all such Property other than Permitted Consideration received from Asset Dispositions and held by the Company and the Restricted Subsidiaries at least any one time shall not exceed 10% of Adjusted Consolidated Net Tangible Assets; and (3) an amount equal to the fair market value of such Additional Assets or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such Additional Assets; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or deposit, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this paragraph, (ii) in accordance with this paragraph, other property or assets may be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All 100% of the Net Available Cash received 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 any Recovery Event 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;
(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this Section 4.15(a) exceeds $20.0 million. Pending application of Net Available Cash pursuant to this Section 4.15(a), such Net Available Cash shall be deposited directly into invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the Collateral Account 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 may be withdrawn 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 to be invested in Additional Assets into cash.
(which may include performance b) In the event of a Restoration of the affected Collateral) in accordance with the preceding paragraph within 360 days from the receipt of such Net Available Cash. Any Net Available Cash from Asset Dispositions of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events or prepayments of the Intercompany Note that are not applied or invested as provided in this subsection (a) or in accordance with the Collateral Documents will be deemed to constitute "Excess Collateral Proceeds." On the 361st day after an Asset Disposition, Asset Swap, Recovery Event or prepayment Disposition that requires the purchase of the Intercompany Note Debt Securities (and other Senior Indebtedness) pursuant to this subsection (aSection 4.15(a)(3)(C), if the aggregate amount of Excess Collateral Proceeds exceeds $5.0 million, the Company will be required shall purchase Debt Securities tendered pursuant to make an offer by the Company for the Debt Securities and such other Senior Indebtedness (the "Collateral Disposition Offer") to all holders at a purchase price of Securities to purchase the maximum 100% of their principal amount of Securities to which (or, in the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceedsevent such other Senior Indebtedness was issued with significant original issue discount, at an offer price in cash in an amount equal to 100% of the principal amount of the Securities accreted value thereof), without premium, plus accrued and but unpaid interest to (or, in respect of such other Senior Indebtedness, such lesser price, if any, as may be provided for by the date terms of purchase, such Senior Indebtedness in accordance with the procedures (including prorationing in the event of over subscription) set forth in this Indenture in integral multiples of $1,000. To the extent that the aggregate amount of Securities so validly tendered and not properly withdrawn pursuant to a Collateral Disposition Offer is less than the Excess Collateral Proceeds, the Company may use any remaining Excess Collateral Proceeds for general corporate purposes, free and clear of any Liens created by the Collateral Documents, subject to other covenants contained in this IndentureSection 4.15(c). If the aggregate principal amount purchase price of Debt Securities surrendered by Holders thereof (and any other Senior Indebtedness tendered pursuant to the Offer) exceeds the amount of Excess Collateral ProceedsNet Available Cash allotted to their purchase, the Trustee 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 basis 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 tenderedthe 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
Sources: Third Supplemental Indenture (Pioneer Natural Resources Co)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition of Collateral unless:
(1i) the Company Issuer or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (such fair market value to be as determined on at the date time of contractually agreeing contractual agreement to such Asset Disposition), as determined in good faith by the Board of Directors (including as to the value of all non-cash consideration), ) of the Collateral shares and assets subject to such Asset Disposition (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraph)Disposition;
(2ii) at least 75% of the consideration from such Asset Disposition thereof received by the Company Issuer or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents and cash equivalents;
(iii) an amount equal to 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral Account; and
(3) the remaining consideration from such Asset Disposition Disposition,
(A) to the extent the Issuer elects (or is required by the terms of any Indebtedness), is used to prepay, repay, redeem or purchase (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 the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Securities; provided, however, each case other than Indebtedness owed to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such other consideration as Collateral, the Company shall either pledge other property Issuer or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such other consideration or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such other consideration (which Cash or Cash Equivalents may be withdrawn by the Company from the Collateral Account to be invested in Additional Assets in the manner set forth under this subsection (a)); provided, further, that prior to such pledge, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) in accordance with this clause (3), other property or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments Affiliate of the Intercompany Note may be withdrawn by the Company to be invested by the Company in Additional Assets Issuer) within 360 450 days from the later of the date of (x) such Asset Disposition, Recovery Event, 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 Swap Disposition or prepayments and (y) the receipt of such Net Available Cash, which 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 are thereupon with their acquisition added Assets”); and
(C) to the Collateral securing extent of the Notesbalance of such Net Available Cash after application (if any) in accordance with clauses (A) and (B) and the expiration of the time periods set forth therein, to make an offer to the Holders of the Notes (and to holders of other Pari Passu Indebtedness of the Issuer designated by the Issuer) to purchase Notes (and such other Pari Passu Indebtedness of the Issuer) pursuant to and subject to the conditions contained in this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness made to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such Additional Assets as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such Additional Assets or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such Additional Assets; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or deposit, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this paragraph, (ii) in accordance with this paragraph, other property or assets may be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case of satisfy clause (i), (iiA) or (iii)C) above, all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All of the Net Available Cash received by the Company or such Restricted Subsidiary, as the case may be, from any Recovery Event shall be deposited directly into the Collateral Account and may be withdrawn by the Company Issuer or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be invested in Additional Assets (which may include performance of a Restoration of the affected Collateral) in accordance with the preceding paragraph within 360 days from the receipt of such Net Available Cash. Any Net Available Cash from Asset Dispositions of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events or prepayments of the Intercompany Note that are not applied or invested as provided in this subsection (a) or in accordance with the Collateral Documents will be deemed to constitute "Excess Collateral Proceeds." On the 361st day after an Asset Disposition, Asset Swap, Recovery Event or prepayment of the Intercompany Note pursuant to this subsection (a), if the aggregate amount of Excess Collateral Proceeds exceeds $5.0 million, the Company will be required to make an offer ("Collateral Disposition Offer") to all holders of Securities to purchase the maximum principal amount of Securities to which the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, at an offer price in cash permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. For the purposes of this Section 4.08, the 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 have been released by all creditors in writing;
(ii) securities received by the Issuer or any 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 conversion;
(iii) all Temporary Cash 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 subsequent changes in value) 3.0% of Total Assets.
(b) In the event of an Asset Disposition that requires an offer to purchase the Notes (and other Pari Passu Indebtedness of the Issuer) pursuant to Section 4.08(a)(iii)(C), the Issuer shall purchase Notes tendered pursuant to an offer by the Issuer for the Notes (and such other Pari Passu Indebtedness) at a purchase price of 100% of the their principal amount of the Securities plus accrued and unpaid interest to the date of purchase(or, in accordance with the procedures set forth in this Indenture in integral multiples of $1,000. To the extent that the aggregate amount of Securities so validly tendered and not properly withdrawn pursuant to a Collateral Disposition Offer is less than the Excess Collateral Proceeds, the Company may use any remaining Excess Collateral Proceeds for general corporate purposes, free and clear of any Liens created by the Collateral Documents, subject to event such other covenants contained in this Indenture. If the aggregate principal amount of Securities surrendered by Holders thereof exceeds the amount of Excess Collateral Proceeds, the Trustee shall select the Securities to be purchased on a pro rata basis on the basis of the aggregate principal amount of tenderedPari Passu Indebtedness
Appears in 1 contract
Sources: Indenture (Amsurg Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition of Collateral unless:
unless (1i) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Disposition 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)Fair Market Value, as determined in good faith by the Board of Directors Directors, the determination of which shall be evidenced by a Board Resolution (including as to the value of all non-cash consideration), of the Collateral shares and assets subject to such Asset Disposition Disposition; (notwithstanding the foregoing, ii) at least 85% of the consideration thereof received by the Company or any such Restricted Subsidiary is in the form of its Restricted Subsidiaries from cash or cash equivalents; (iii) the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G Company delivers an Officers' Certificate to the Supply Agreement by Trustee certifying that such Asset Disposition complies with clauses (i) and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. (ii); and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 (iv) an amount equal to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraph);
(2) at least 75100% of the consideration Net Available Cash from such Asset Disposition received is applied by the Company (or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents and 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral Account; and
) (3A) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Securities; provided, howeverfirst, to the extent that the Credit Facility Collateral Documents restrict Company elects (or is required by the terms of any Senior Indebtedness or the 10 5/8% Notes), to prepay, repay or purchase Senior Indebtedness or Indebtedness (including the 10 5/8% Notes but other than any Preferred Stock) of a Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company's ability to pledge such other consideration as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such other consideration or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such other consideration (which Cash or Cash Equivalents may be withdrawn by the Company from the Collateral Account to be invested in Additional Assets in the manner set forth under this subsection (a)); provided, further, that prior to such pledge, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) in accordance with this clause (3), other property or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments of the Intercompany Note may be withdrawn by the Company to be invested by the Company in Additional Assets within 360 270 days from the later of the date of (x) such Asset Disposition, Recovery Event, Asset Swap Disposition or prepayments and (y) the receipt of such Net Available Cash, which Additional Assets are thereupon with their acquisition added to the Collateral securing the Notes; provided, however(B) second, to the extent that of the Credit Facility Collateral Documents restrict balance of Net Available Cash after application in accordance with clause (A), to the Company's ability to pledge such Additional Assets as Collateral, extent the Company shall either pledge other property or assets as Collateral having a fair market valuesuch Restricted Subsidiary elects, as determined in good faith by the Board of Directors, at least equal to the fair market value of such Additional Assets or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such Additional Assets; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or deposit, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested reinvest in Additional Assets (including by means of an Investment in compliance Additional Assets by a Restricted Subsidiary with this paragraph, (ii) in accordance with this paragraph, other property or assets may be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All of the Net Available Cash received by the Company or such another Restricted Subsidiary, as the case may be, from any Recovery Event shall be deposited directly into the Collateral Account and may be withdrawn by the Company or such Restricted Subsidiary to be invested in Additional Assets (which may include performance of a Restoration of the affected Collateral) in accordance with the preceding paragraph within 360 270 days from the later 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) (such balance being the "Excess Proceeds"), to make an Offer to purchase Securities pursuant to and subject to the conditions of the following two paragraphs; provided, however that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and 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. Any Notwithstanding the foregoing provisions of this provision, the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this provision except to the extent that the aggregate Net Available Cash from all Asset Dispositions of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events or prepayments of the Intercompany Note that which are not applied or invested as provided in this subsection (a) or in accordance with the Collateral Documents will be deemed to constitute "this provision exceed $15 million (taking into account income earned on any Excess Collateral Proceeds." On the 361st day after an Asset Disposition, Asset Swap, Recovery Event or prepayment ). Pending application of the Intercompany Note Net Available Cash pursuant to this subsection provision, such Net Available Cash shall be invested in Temporary Cash 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 the procedures set forth in Section 4.06(c) below.
(ab) In the event of an Asset Disposition or Event of Loss that requires the purchase of Securities pursuant to Section 4.06(a)(iv)(C), if the aggregate amount of Excess Collateral Proceeds exceeds $5.0 million, the Company will be required to make purchase Securities tendered pursuant to an offer by the Company for the Securities (the "Collateral Disposition Offer") to all holders of Securities to purchase which offer shall be in the maximum principal amount of Securities to which the Collateral Disposition Offer applies that may be purchased out of the Allocable Excess Collateral ProceedsProceeds (as defined below), at an offer a purchase price in cash in an amount equal to of 100% of the their principal amount of the Securities plus accrued and unpaid interest to the date of purchase, Purchase Date in accordance with the procedures (including prorationing in the event of over subscription) set forth in this Indenture in integral multiples of $1,000the next paragraph. To the extent that If the aggregate amount purchase price of Securities so validly tendered and not properly withdrawn pursuant to a Collateral Disposition the Offer is less than the Allocable Excess Collateral 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 remaining particular Asset Disposition or Event of Loss (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 or Event of Loss). "Allocable Excess Collateral Proceeds" means the product of (x) the Excess Proceeds for general corporate purposesand (y) a fraction, free and clear the numerator of any Liens created by the Collateral Documents, subject to other covenants contained in this Indenture. If which is the aggregate principal amount of Securities surrendered by Holders thereof exceeds the amount of Excess Collateral Proceeds, the Trustee shall select the Securities to be purchased on a pro rata basis outstanding on the basis date of the Offer and the denominator of which is the sum of the aggregate principal amount of tenderedthe 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
Sources: Indenture (Rio Hotel & Casino Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Each of the Parent and the Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition of Collateral unless:
(1i) the Parent, the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors (including as to the value of all non-cash consideration), of the Collateral shares and assets subject to such Asset Disposition;
(ii) in the case of an Asset Disposition (notwithstanding the foregoingfor consideration exceeding $5.0 million, the consideration received fair market value is determined, in good faith, by the Company or any Board of its Restricted Subsidiaries from the sale Directors, and evidenced by a resolution of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as Board of the Issue Date, Directors set forth in Exhibit G an Officer's Certificate delivered to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraph)Trustee;
(2iii) at least 75% of the consideration from such Asset Disposition thereof received by the Parent, the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents and cash equivalents; and
(iv) an amount equal to 100% of the Net Available Cash therefrom from such Asset Disposition is deposited directly applied by the Parent, the Company into or such Restricted Subsidiary, as the Collateral Accountcase may be, within 365 days after its receipt, at its option:
(A) to prepay, repay, redeem or purchase Senior Indebtedness of the Company or Senior Indebtedness (other than any Disqualified Stock) of a Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company or the Parent);
(B) to acquire Additional Assets; and
(3C) to the remaining consideration from extent of the balance of such Asset Disposition that is not Net Available Cash after application in accordance with clauses (A) and (B) of this Section 4.10(a)(iv), to make an offer to the form Holders of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral the Notes (and to secure holders of other Senior Indebtedness of the SecuritiesCompany designated by it) to purchase Notes (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) of Section 4.10(a)(iv), 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 Section 4.10, the Parent, the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this Section 4.10(a) except to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such other consideration as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such other consideration or deposit an amount of cash or aggregate Net Available Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such other consideration (from all Asset Dispositions which Cash or Cash Equivalents may be withdrawn by the Company from the Collateral Account to be invested in Additional Assets in the manner set forth under this subsection (a)); provided, further, that prior to such pledge, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) are not applied in accordance with this clause (3Section 4.10(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.10(a), other property or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or such Net Available Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to shall be invested in Additional Assets in compliance with Temporary Cash Investments or used to reduce loans outstanding under any revolving credit facility existing under a Credit Facility. For the purposes of this clause (3) and thatSection 4.10, in the case of clause following are deemed to be cash or cash equivalents: (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions assumption of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments Indebtedness of the Intercompany Note may be withdrawn by the Company to be invested by the Company in Additional Assets within 360 days from the later of the date of (x) such Asset Disposition, Recovery Event, Asset Swap or prepayments and (y) the receipt of such Net Available Cash, which Additional Assets are thereupon with their acquisition added to the Collateral securing the Notes; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such Additional Assets as CollateralParent, the Company shall either pledge or any Restricted Subsidiary (other property or assets as Collateral having a fair market value, as determined in good faith by the Board than any of Directors, at least equal to the fair market value of such Additional Assets or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such Additional Assets; provided, further, that prior to such investment (their Subordinated Obligations) and the related withdrawal from the Collateral Account), pledge or deposit, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this paragraph, (ii) in accordance with this paragraph, other property or assets may be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All release of the Net Available Cash received by Parent, the Company or such Restricted Subsidiary, as the case may be, from all liability on such Indebtedness in connection with such Asset Disposition and (ii) any Recovery Event shall be deposited directly into securities received by the Collateral Account and may be withdrawn Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash on the maturity date thereof but in no event later than 180 days after the receipt thereof (to be invested in Additional Assets the extent of cash received).
(which may include performance b) In the event of a Restoration an Asset Disposition that requires the purchase of the affected CollateralNotes (and other Senior Indebtedness of the Company) pursuant to Section 4.10(a)(iv)(C), the Company shall purchase Notes tendered pursuant to an offer by the Company for the Notes (and such other Senior Indebtedness of the Company) at a purchase price of 100% of their principal amount (or, in the event such other Senior Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof) (the "Offer"), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Indebtedness of the Company, such lesser price, if any, as may be provided for by the terms of such Senior Indebtedness of the Company) in accordance with the preceding paragraph within 360 days from procedures (including prorating in the receipt event of such Net Available Cashoversubscription) set forth in Section 4.10(c). Any If the aggregate purchase price of the securities tendered pursuant to the Offer exceeds the Net Available Cash from Asset Dispositions of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events or prepayments of the Intercompany Note that are not applied or invested as provided in this subsection (a) or in accordance with the Collateral Documents will be deemed allotted to constitute "Excess Collateral Proceeds." On the 361st day after an Asset Disposition, Asset Swap, Recovery Event or prepayment of the Intercompany Note pursuant to this subsection (a), if the aggregate amount of Excess Collateral Proceeds exceeds $5.0 milliontheir purchase, the Company will be required to make an offer ("Collateral Disposition Offer") to all holders of Securities to purchase the maximum principal amount of Securities to which the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Securities plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in this Indenture in integral multiples of $1,000. To the extent that the aggregate amount of Securities so validly tendered and not properly withdrawn pursuant to a Collateral Disposition Offer is less than the Excess Collateral Proceeds, the Company may use any remaining Excess Collateral Proceeds for general corporate purposes, free and clear of any Liens created by the Collateral Documents, subject to other covenants contained in this Indenture. If the aggregate principal amount of Securities surrendered by Holders thereof exceeds the amount of Excess Collateral Proceeds, the Trustee shall select the Securities securities to be purchased on a pro rata basis but in denominations of $1,000 principal amount or multiples thereof.
(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 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 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), provided, however, this obligation can be satisfied by the Parent's filing and providing such information, documents and reports so long as the Parent owns all the Capital Stock of the Company, (ii) a description of material developments in the Company's (or the Parent's, if applicable) 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 Notes pursuant to the Offer, together with the information contained in clause (3) of this Section 4.10(c).
(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 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent other than the Company in Temporary Cash Investments, maturing on the basis 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 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 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 Note which was delivered for purchase by the Holder and a statement that such H▇▇▇▇▇ is withdrawing his election to have such Note purchased. If at the expiration of the Offer Period the aggregate principal amount of tenderedNotes (and any other Senior Indebtedness included in the Offer) surrendered pursuant to the Offer exceeds the Offer Amount, the Company shall select the Notes and other Senior Indebtedness 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 Indebtedness in denomination 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 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) Each of the Parent and 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 4.10. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.10, each of the Parent and 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 shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition of Collateral unless:
unless (1i) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Disposition 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)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), of the Collateral shares and assets subject to such Asset Disposition Disposition, (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraph);
(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 and (iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition received is applied by the Company (or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents and 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral Account; and
) (3A) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Securities; provided, howeverfirst, to the extent that the Credit Facility Collateral Documents restrict Company or any Restricted Subsidiary elects (or is required by the terms of any Senior Indebtedness), to prepay, repay or purchase (x) Senior Indebtedness or (y) Indebtedness (other than Preferred Stock) of a Wholly-Owned Subsidiary (in each case other than Indebtedness owed to the Company's ability to pledge such other consideration as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such other consideration or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such other consideration (which Cash or Cash Equivalents may be withdrawn by the Company from the Collateral Account to be invested in Additional Assets in the manner set forth under this subsection (a)); provided, further, that prior to such pledge, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) in accordance with this clause (3), other property or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments of the Intercompany Note may be withdrawn by the Company to be invested by the Company in Additional Assets within 360 180 days from the later of the date of (x) such Asset DispositionDisposition or the receipt of such Net Available Cash; (B) second, Recovery Event, Asset Swap or prepayments and (y) within one year from the receipt of such Net Available Cash, which 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 are thereupon with their acquisition added 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 Collateral securing Company); and (C) third, within 45 days after the Notes; providedlater 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, howeverto the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to purchase Securities, 1997 Securities and other Senior Subordinated Indebtedness, to the extent required pursuant to the terms thereof, pro rata at 100% of the tendered principal amount thereof (or 100% of the accreted value of such other Senior Subordinated Indebtedness so tendered, if such Senior Subordinated Indebtedness was issued at a discount) plus accrued and unpaid interest, if any, thereon to the date of purchase. The balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) may be used by the Company in any manner not otherwise prohibited under this Indenture or the 1997 Indenture. Notwithstanding anything herein to the contrary, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A), (B) or (C) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions, the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the Credit Facility Collateral Documents restrict aggregate Net Available Cash from all Asset Dispositions since the Company's ability 1997 Security Issue Date which are not applied in accordance with this Section 4.6 at any time exceed $15 million. The Company shall not be required to pledge make an offer for Securities or 1997 Securities pursuant to this Section 4.6 if the Net Available Cash available therefor (after application of the proceeds as provided in clauses (A) and (B)) is less than $25 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). For the purposes of this Section 4.6, the following will be deemed to be cash: (x) the assumption by the transferee of Senior Indebtedness of the Company or Indebtedness of any Restricted Subsidiary of the Company and the release of the Company or such Additional Assets as CollateralRestricted Subsidiary from all liability on such Senior Indebtedness or Indebtedness in connection with such Asset Disposition (in which case the Company shall, without further action, be deemed to 51 45 have applied such assumed Indebtedness in accordance with clause (A) of the preceding paragraph) and (y) securities received by the Company or any Restricted Subsidiary of the Company from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash. Notwithstanding the foregoing, the Company and its Restricted Subsidiaries shall either pledge other property be permitted to consummate an Asset Swap if (i) immediately after giving effect to such Asset Swap, no Default or assets as Collateral having 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 fair market value, as determined in good faith by majority of the members of the Board of Directors, at least equal to the fair market value of such Additional Assets or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such Additional Assets; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or deposit, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this paragraph, (ii) in accordance with this paragraph, other property or assets may be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraphthe event such Asset Swap involves an aggregate amount in excess of $50 million, cash or Cash Equivalents are the Company has received a written opinion from an independent investment banking firm of nationally recognized standing that such Asset Swap is fair to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All of the Net Available Cash received by the Company or such Restricted Subsidiary, as the case may be, from any Recovery Event shall be deposited directly into a financial point of view.
(b) In the Collateral Account and may be withdrawn by the Company or such Restricted Subsidiary to be invested in Additional Assets (which may include performance event of a Restoration of the affected Collateral) in accordance with the preceding paragraph within 360 days from the receipt of such Net Available Cash. Any Net Available Cash from Asset Dispositions of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events or prepayments of the Intercompany Note that are not applied or invested as provided in this subsection (a) or in accordance with the Collateral Documents will be deemed to constitute "Excess Collateral Proceeds." On the 361st day after an Asset Disposition, Asset Swap, Recovery Event or prepayment Disposition that requires the purchase of the Intercompany Note Securities pursuant to this subsection (a), if Section 4.6(a)(iii)(C) and/or the aggregate amount of Excess Collateral Proceeds exceeds $5.0 million1997 Securities pursuant to the 1997 Indenture, the Company will be required to make purchase Securities and/or the 1997 Securities tendered pursuant to an offer by the Company for the Securities and/or the 1997 Securities (the "Collateral Disposition Offer") to all holders at a purchase price of Securities to purchase the maximum principal amount of Securities to which the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, at an offer price in cash in an amount equal to 100% of their principal amount plus accrued and unpaid interest, if any, to the purchase date in accordance with the procedures (including prorating in the event of oversubscription as well as proration required as a result of tenders of other Senior Subordinated Indebtedness) set forth in 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.
(1) 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 plus accrued which were delivered for purchase by such Holder and unpaid interest a statement that such Holder is withdrawing his election to the date of purchase, in accordance with the procedures set forth in this Indenture in integral multiples of $1,000. To the extent that the aggregate amount of have such Security or Securities so validly tendered and not properly withdrawn pursuant to a Collateral Disposition Offer is less than the Excess Collateral Proceeds, the Company may use any remaining Excess Collateral Proceeds for general corporate purposes, free and clear of any Liens created by the Collateral Documents, subject to other covenants contained in this Indenturepurchased. If at the expiration of the Offer Period the aggregate principal amount of Securities surrendered by Holders thereof exceeds the amount of Excess Collateral ProceedsOffer Amount, the Trustee Company shall select the Securities to be purchased on a pro rata basis on (with such adjustments as may be deemed appropriate by the basis 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 aggregate principal amount Securities surrendered.
(d) The Company will comply, to the extent applicable, with the requirements of tenderedSection 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.
Appears in 1 contract
Sources: Indenture (Viasystems Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition of Collateral unless:
(1i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the Fair Market Value of the shares and assets subject to such Asset Disposition,
(ii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash, assets useful in a Permitted Business or Permitted Securities; provided that the amount of any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition shall be deemed cash for the purposes of this provision (but for no other purpose) so long as such amount, taken together with the Fair Market Value when received of all other Designated Non-Cash Consideration that is at that time outstanding (i.e., that has not been sold for or otherwise converted into cash), does not exceed $35,000,000, and
(iii) 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, receives consideration 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 (including as to the value of all non-cash consideration), of the Collateral subject to such Asset Disposition (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraph);
(2) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents and 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral Account; and
(3) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Securities; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such other consideration as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such other consideration or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such other consideration (which Cash or Cash Equivalents may be withdrawn by the Company from the Collateral Account to be invested in Additional Assets in the manner set forth under this subsection (a)); provided, further, that prior to such pledge, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) in accordance with this clause (3), other property or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments of the Intercompany Note may be withdrawn by the Company to be invested by the Company in Additional Assets within 360 days from after the later of the date of (x) such Asset Disposition, Recovery Event, Asset Swap Disposition or prepayments and (y) the receipt of such Net Available Cash, which Additional Assets are thereupon with their acquisition added to the Collateral securing the Notes; provided, however:
(1) first, to the extent that the Credit Facility Collateral Documents restrict Company elects (or is required by the terms of any Indebtedness), to prepay, repay, purchase, repurchase, redeem, retire, defease or otherwise acquire for value Senior Indebtedness of the Company's ability , Senior Indebtedness of a Subsidiary Guarantor or Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to pledge such Additional Assets as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market valuean Affiliate of the Company);
(2) second, as determined in good faith by the Board of Directors, at least equal to the fair market value extent of such Additional Assets or deposit an amount the balance of cash or Net Available Cash Equivalents into the Collateral Account having a value at least equal after application, in accordance with clause (1), to the fair market value of such Additional Assets; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or deposit, extent the Company shall have delivered or such Restricted Subsidiary elects, to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested reinvest in Additional Assets (including by means of an Investment in compliance Additional Assets by a Restricted Subsidiary with this paragraph, (ii) in accordance with this paragraph, other property or assets may be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All of the Net Available Cash received by the Company or another Restricted Subsidiary);
(3) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (1) and (2), to make an Offer (as defined in Section 3.09(b)) to purchase Notes pursuant to and subject to the conditions of 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
(4) fourth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (1), (2) and (3), for any general corporate purpose not prohibited by the terms of this Indenture; provided, however that in connection with any prepayment, repayment, purchase, repurchase, redemption, retirement, defeasance or other acquisition for value of Indebtedness pursuant to clause (1) or (3) above, the Company or such Restricted SubsidiarySubsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, as repaid, purchased, repurchased, redeemed, retired, defeased or otherwise acquired for value. Notwithstanding the case may beforegoing provisions of this Section 3.09, the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this Section 3.09 except to the extent that the aggregate Net Available Cash from all Asset Dispositions that is not applied in accordance with this Section 3.09 exceeds $50,000,000. For the purposes of this Section 3.09, 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 Recovery Event shall be deposited directly into Restricted Subsidiary (other than obligations in respect of Disqualified Stock and Preferred Stock of a Subsidiary Guarantor) and the Collateral Account and may be withdrawn release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and
(B) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary to be invested in Additional Assets into cash.
(which may include performance b) In the event of a Restoration of the affected Collateral) in accordance with the preceding paragraph within 360 days from the receipt of such Net Available Cash. Any Net Available Cash from Asset Dispositions of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events or prepayments of the Intercompany Note that are not applied or invested as provided in this subsection (a) or in accordance with the Collateral Documents will be deemed to constitute "Excess Collateral Proceeds." On the 361st day after an Asset Disposition, Asset Swap, Recovery Event or prepayment Disposition that requires the purchase of the Intercompany Note Notes pursuant to this subsection (aSection 3.09(a)(iii)(3), if the aggregate amount of Excess Collateral Proceeds exceeds $5.0 million, the Company will be required (i) to make purchase Notes tendered pursuant to an offer by the Company for the Notes ("Collateral Disposition the “Offer"”) to all holders at a purchase price of Securities to purchase the maximum principal amount of Securities to which the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, at an offer price in cash in an amount equal to 100% of the their principal amount plus accrued and unpaid interest thereon to the date of purchase (subject to the right of Holders of record on the relevant date to receive interest due on the relevant interest payment date) in accordance with the procedures, including prorating in the event of oversubscription, set forth in this Indenture and (ii) to purchase or otherwise repay other Senior Subordinated Indebtedness of the Securities plus 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 purchaseacquisition, 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 procedures set forth Net Available Cash available therefor (after application of the proceeds as provided in this Indenture 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 the 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 $1,0001,000 of principal amount, at the applicable purchase price. To the extent that the aggregate amount of Securities so validly tendered and The notice shall specify a purchase date not properly withdrawn pursuant to a Collateral Disposition Offer is less than 30 days nor more than 60 days after the Excess Collateral Proceedsdate 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 use any remaining Excess Collateral Proceeds for general corporate purposesmay, free and clear at its option, notify the holders that such reports are available to them in electronic format through the SEC’s ▇▇▇▇▇ system, (2) a description of any Liens created by material developments in the Collateral Documents, subject Company’s business subsequent to other covenants contained in this Indenture. If the aggregate principal amount of Securities surrendered by Holders thereof exceeds the amount of Excess Collateral Proceeds, the Trustee shall select the Securities to be purchased on a pro rata basis on the basis date of the aggregate principal amount latest of tenderedsuch 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
Sources: Second Supplemental Indenture (Alliant Techsystems Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition of Collateral unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors of the Company whose determination shall be conclusive (including as to the value of all non-cash consideration), of the Collateral shares and assets subject to such Asset Disposition (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraph)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 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, as the case may be, is in the form of cash or cash, Cash Equivalents and or Temporary Cash Investments; and
(3) an amount equal to 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral Account; and
(3) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Securities; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such other consideration as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such other consideration or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such other consideration (which Cash or Cash Equivalents may be withdrawn by the Company from the Collateral Account to be invested in Additional Assets in the manner set forth under this subsection (a)); provided, further, that prior to such pledge, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) in accordance with this clause (3), other property or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments of the Intercompany Note may be withdrawn by the Company to be invested by the Company in Additional Assets within 360 days from the later of the date of (x) such Asset Disposition, Recovery Event, Asset Swap or prepayments and (y) the receipt of such Net Available Cash, which Additional Assets are thereupon with their acquisition added to the Collateral securing the Notes; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such Additional Assets as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such Additional Assets or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such Additional Assets; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or deposit, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this paragraph, (ii) in accordance with this paragraph, other property or assets may be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All of the Net Available Cash received applied by the Company or such Restricted Subsidiary, as the case may be, from any Recovery Event shall be deposited directly into :
(A) to the Collateral Account and may be withdrawn by extent the Company or such any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Senior Indebtedness or Indebtedness of a Restricted Subsidiary), to prepay, repay or purchase Senior Indebtedness, Note Guarantor Senior Indebtedness or Indebtedness of a Restricted Subsidiary that is not a Note Guarantor (other than eircom Funding) (in each case other than Indebtedness owed to be invested in Additional Assets (which may include performance of the Company or a Restoration Restricted Subsidiary) within 365 days from the later of the affected Collateral) in accordance with the preceding paragraph within 360 days from date of such Asset Disposition and the receipt of such Net Available Cash. Any Net Available Cash from Asset Dispositions ; provided, however, that, in connection with any prepayment, repayment or purchase of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events or prepayments of the Intercompany Note that are not applied or invested as provided in this subsection (a) or in accordance with the Collateral Documents will be deemed to constitute "Excess Collateral Proceeds." On the 361st day after an Asset Disposition, Asset Swap, Recovery Event or prepayment of the Intercompany Note Indebtedness pursuant to this subsection (a), if the aggregate amount of Excess Collateral Proceeds exceeds $5.0 million, the Company will be required to make an offer ("Collateral Disposition Offer") to all holders of Securities to purchase the maximum principal amount of Securities to which the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Securities plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in this Indenture in integral multiples of $1,000. To the extent that the aggregate amount of Securities so validly tendered and not properly withdrawn pursuant to a Collateral Disposition Offer is less than the Excess Collateral Proceeds, the Company may use any remaining Excess Collateral Proceeds for general corporate purposes, free and clear of any Liens created by the Collateral Documents, subject to other covenants contained in this Indenture. If the aggregate principal amount of Securities surrendered by Holders thereof exceeds the amount of Excess Collateral Proceeds, the Trustee shall select the Securities to be purchased on a pro rata basis on the basis of the aggregate principal amount of tenderedSection
Appears in 1 contract
Sources: Senior Subordinated Indenture (Valentia Telecommunications)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition of Collateral unless:
unless (1) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Disposition 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 (including as to the value of all non-cash consideration), of the Collateral subject to such Asset Disposition (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraph);
(2) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents and 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral Account; and
(3) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Securities; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such other consideration as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; (2) at least equal to 75% of the fair market value of such other consideration or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such other consideration (which Cash or Cash Equivalents may be withdrawn thereof received by the Company from or such Restricted Subsidiary is in the Collateral Account to be invested in form of cash, cash equivalents, Additional Assets in the manner set forth under this subsection or any combination thereof (a"Permitted Consideration")); provided, further, that prior to such pledge, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) in accordance with this clause (3), other property or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments of the Intercompany Note may be withdrawn by the Company to be invested by the Company in Additional Assets within 360 days from the later of the date of (x) such Asset Disposition, Recovery Event, Asset Swap or prepayments and (y) the receipt of such Net Available Cash, which Additional Assets are thereupon with their acquisition added to the Collateral securing the Notes; provided, however, to the extent that the Credit Facility Collateral Documents restrict Company and its Restricted Subsidiaries shall be permitted to receive Property other than Permitted Consideration, so long as the Company's ability to pledge such Additional Assets as Collateral, the Company shall either pledge other property or assets as Collateral having a aggregate fair market value, as determined in the good faith by of the Board of Directors, of all such Property other than Permitted Consideration received from Asset Dispositions and held by the Company and the Restricted Subsidiaries at least any one time shall not exceed 10% of Adjusted Consolidated Net Tangible Assets; and (3) an amount equal to the fair market value of such Additional Assets or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such Additional Assets; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or deposit, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this paragraph, (ii) in accordance with this paragraph, other property or assets may be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All 100% of the Net Available Cash received 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), to make an Offer to the holders of the Securities (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness) pursuant to and subject to the conditions of Section 4.8(b); provided, however, that in connection with any Recovery Event prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, 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 Section 4.8, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 4.8(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this Section 4.8(a) exceeds $20.0 million. Pending application of Net Available Cash pursuant to this Section 4.8(a), such Net Available Cash shall be deposited directly into invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the Collateral Account 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 may be withdrawn 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 to be invested in Additional Assets into cash.
(which may include performance b) In the event of a Restoration of the affected Collateral) in accordance with the preceding paragraph within 360 days from the receipt of such Net Available Cash. Any Net Available Cash from Asset Dispositions of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events or prepayments of the Intercompany Note that are not applied or invested as provided in this subsection (a) or in accordance with the Collateral Documents will be deemed to constitute "Excess Collateral Proceeds." On the 361st day after an Asset Disposition, Asset Swap, Recovery Event or prepayment Disposition that requires the purchase of the Intercompany Note Securities (and other Senior Indebtedness) pursuant to this subsection (aSection 4.8(a)(3)(C), if the aggregate amount of Excess Collateral Proceeds exceeds $5.0 million, the Company will be required shall purchase Securities tendered pursuant to make an offer by the Company for the Securities and such other Senior Indebtedness (the "Collateral Disposition Offer") to all holders at a purchase price of Securities to purchase the maximum 100% of their principal amount of Securities to which (or, in the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceedsevent such other Senior Indebtedness was issued with significant original issue discount, at an offer price in cash in an amount equal to 100% of the principal amount of the Securities accreted value thereof), without premium, plus accrued and but unpaid interest to (or, in respect of such other Senior Indebtedness, such lesser price, if any, as may be provided for by the date terms of purchase, such Senior Indebtedness in accordance with the procedures (including prorationing in the event of over subscription) set forth in this Indenture in integral multiples of $1,000. To the extent that the aggregate amount of Securities so validly tendered and not properly withdrawn pursuant to a Collateral Disposition Offer is less than the Excess Collateral Proceeds, the Company may use any remaining Excess Collateral Proceeds for general corporate purposes, free and clear of any Liens created by the Collateral Documents, subject to other covenants contained in this IndentureSection 4.8(c). If the aggregate principal amount purchase price of Securities surrendered by Holders thereof (and any other Senior Indebtedness tendered pursuant to the Offer) exceeds the amount of Excess Collateral ProceedsNet Available Cash allotted to their purchase, the Trustee 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 basis 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 tenderedthe 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
Sources: Supplemental Indenture (Pioneer Natural Resources Co)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition of Collateral Dis position unless:
(1i) the Company or such Restricted Subsidiary, as the case may be, 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 (of the shares and assets subject to such Asset Disposition, as such fair market value to may be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors (including as to the value of all non-cash consideration), of the Collateral subject to such Asset Disposition (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, shall be deemed to be fair market value for purposes of this paragraph);
(2) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents and 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral Account; and
(3) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Securities; provided, howeverdetermined, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such other Asset Disposition involves aggregate consideration as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in excess of $10.0 million) in good faith by the Board of Directors, at least equal whose determination shall be conclusive (including as to the value of all noncash consideration),
(ii) in the case of any Asset Disposition having a fair market value of such other consideration $10.0 million or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value more, at least equal to 75% of the fair market value of such other consideration therefor (which Cash or Cash Equivalents may be withdrawn by the Company from the Collateral Account to be invested in Additional Assets in the manner set forth under this subsection (a)); provided, further, that prior to such pledge, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) in accordance with this clause (3), other property or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and thatexcluding, in the case of an Asset Disposition of assets, 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, and provided that this clause (i), (ii) or shall not apply to any Asset Disposition involving assets that accounted for less than two percent of Consolidated EBITDA during the period of the most recent four consecutive fiscal quarters ending prior to the date of such Asset Disposition for which consolidated financial statements of the Company are available, and
(iii), all conditions precedent provided for in this Indenture ) an amount equal to such pledge, deposit or withdrawal have been complied with. Any 100% of the Net Available Cash deposited into the Collateral Account from any such Asset Dispositions of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments of the Intercompany Note may be withdrawn Disposition is applied by the Company (or any Restricted Subsidiary, as the case may be) as follows:
(A) first, either (x) to be invested the extent the Company elects (or is required by the terms of any Senior Indebtedness or Indebtedness of a Restricted Sub sidiary), to prepay, repay or purchase Senior Indebtedness or such Indebtedness of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company in Additional Assets or a Restricted Subsidiary) within 360 365 days from the later of after the date of (x) such Asset Disposition, Recovery Event, Asset Swap or prepayments and (y) the receipt of such Net Available Cash, which Additional Assets are thereupon with their acquisition added to the Collateral securing the Notes; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such Additional Assets as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market valuesuch Restricted Sub sidiary elects, as determined in good faith by the Board of Directors, at least equal to the fair market value of such Additional Assets or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such Additional Assets; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or deposit, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested reinvest in Additional Assets (including by means of an investment in compliance Additional Assets by a Restricted Subsidiary with this paragraph, (ii) in accordance with this paragraph, other property or assets may be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All of the Net Available Cash received by the Company or another Restricted Subsidiary) within 365 days from the date of such Asset Disposition, or, if such reinvestment in Additional Assets is a project that is 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 SubsidiarySubsidiary elects, or is required by the terms thereof) to purchase, redeem or repay any other Senior Subordinated Indebtedness or Guarantor Senior Subordinated Indebtedness, pursuant and subject to Section 410(b) and Section 410(c) and the agreements governing such 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, to fund (to the extent consistent with any other applicable provision of this Indenture) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A)(x) or (B) above, the Company or such Restricted Sub sidiary will retire such Indebtedness and 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 the foregoing provisions of this Section 410, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 410 except to the extent that the aggregate Net Available Cash from all Asset Dispositions that is not applied in accordance with this Section 410 exceeds $15.0 million. If the aggregate principal amount of Notes, Senior Subordinated Indebtedness and Guarantor Senior Subordinated Indebtedness 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 the Notes and such Senior Subordinated Indebtedness and Guarantor Senior Subordinated Indebtedness, with the portion of the Excess Proceeds payable in respect of the 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 the 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 Senior Subordinated Indebtedness and Guarantor Senior Subordinated Indebtedness, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn.
(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 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 case may be, extent that the Company and each other Restricted Subsidiary is released from any Recovery Event shall be deposited directly into Guarantee of payment of such Indebtedness in connection with such Asset Disposition, (4) securities received by the Collateral Account and may be withdrawn Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary to be invested in Additional Assets into cash and (which may include performance 5) consideration consisting of a Restoration Indebtedness of the affected CollateralCompany or any Restricted Subsidiary.
(b) in accordance with In the preceding event of an Asset Disposition that requires the purchase of Notes pursuant to clause (iii)(B) of paragraph within 360 days from the receipt of such Net Available Cash. Any Net Available Cash from Asset Dispositions of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events or prepayments of the Intercompany Note that are not applied or invested as provided in this subsection (a) or in accordance with the Collateral Documents will be deemed to constitute "Excess Collateral Proceeds." On the 361st day after an Asset Disposition, Asset Swap, Recovery Event or prepayment of the Intercompany Note pursuant to this subsection (a), if the aggregate amount of Excess Collateral Proceeds exceeds $5.0 millionSection 410, the Company will be required to make purchase Notes tendered pursuant to an offer by the Company for the Notes (the "Collateral Disposition Offer") at a purchase price of 100% of their principal amount plus accrued and unpaid interest to all holders the purchase date in accordance with the procedures (including prorating in the event of Securities oversubscription) set forth in this Indenture. 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 clause (iii)(B) of paragraph (a) of this Section 410 (to repay Senior Subordinated Indebtedness or Guarantor Senior Subordinated Indebtedness) or clause (iii)(C) of paragraph (a) of this Section 410. The Company shall not be required to make an Offer for Notes pursuant to this Section 410 if the Net Available Cash available therefor (after application of the proceeds as provided in clause (iii)(A) of paragraph (a) of this Section 410) is less than $15.0 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).
(c) The Company will, not later than 45 days after the Company becomes obligated to make an Offer pursuant to this Section 410, mail a notice to each Holder with a copy to the Trustee (and publish notice in Luxembourg in accordance with Section 110) stating: (1) that an Asset Disposition that requires the purchase of a 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 the maximum principal amount a portion of Securities to which the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, such Holder's Notes at an offer a purchase price in cash in an amount equal to 100% of the principal amount of the Securities thereof, plus accrued and unpaid interest interest, if any, to the date of purchasepurchase (subject to Section 307); (2) the circumstances and relevant facts and financial information regarding such Asset Disposition; (3) the repurchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed); (4) the instructions determined by the Company, consistent with this Section 410, that a Holder must follow in accordance with order to have its Notes purchased; and (5) the procedures set forth in this Indenture in integral multiples of $1,000. To the extent that the aggregate amount of Securities so validly tendered and not properly withdrawn pursuant to a Collateral Disposition the Offer. If, upon the expiration of the period for which the Offer is less than the Excess Collateral Proceedsremains open, the Company may use any remaining Excess Collateral Proceeds for general corporate purposes, free and clear of any Liens created by the Collateral Documents, subject to other covenants contained in this Indenture. If the aggregate principal amount of Securities Notes surrendered by Holders thereof exceeds the amount of Excess Collateral Proceedsthe Offer, the Trustee shall Company will select the Securities Notes to be purchased on a pro rata basis on (with such adjustments as may be deemed appropriate by the basis Company so that only Notes in denominations of $1,000 or integral multiples thereof, shall be purchased).
(d) The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the aggregate principal amount Exchange Act and any other securities laws or regulations in connection with the repurchase of tenderedNotes pursuant to this Section 410. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 410, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 410 by virtue thereof.
Appears in 1 contract
Sources: Indenture (Us Office Products Co)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition of Collateral unless:
unless (1i) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Disposition 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 senior management of the Company or, if the fair market value of such assets exceeds $500,000, by the Company's Board of Directors Directors) (including as to the value of all non-cash consideration), of the Collateral shares and assets subject to such Asset Disposition Disposition, (notwithstanding the foregoing, ii) at least 80% of the consideration thereof received by the Company or any such Restricted Subsidiary is in the form of cash or Cash Equivalents, Additional Assets or distribution agreements with radio stations or cable television operators or other video distributors which would receive programming of the Company or its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G according to the Supply Agreement by Company's historical practice and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 (iii) an amount equal to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraph);
(2) at least 75100% of the consideration Net Available Cash from such Asset Disposition received is applied by the Company (or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents and 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral Account; and
): (3A) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Securities; provided, howeverfirst, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such other consideration as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith any Restricted Subsidiary elects (or is required by the Board terms of Directors, at least equal to the fair market value of such other consideration or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such other consideration (which Cash or Cash Equivalents may be withdrawn by the Company from the Collateral Account to be invested in Additional Assets in the manner set forth under this subsection (a)); provided, further, that prior to such pledge, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) in accordance with this clause (3), other property or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and that, in the case of clause (iany Senior Indebtedness), (iix) to prepay, repay or purchase Senior Indebtedness of the Company or its Restricted Subsidiaries or (iii), all conditions precedent provided for y) to the investment in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions acquisition of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments of the Intercompany Note may be withdrawn by the Company to be invested by the Company in Additional Assets within 360 180 days from the later of the date of (x) such Asset Disposition, Recovery Event, Asset Swap Disposition or prepayments and (y) the receipt of such Net Available Cash; (B) second, which Additional Assets are thereupon with their acquisition added to the Collateral securing the Notes; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such Additional Assets as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such Additional Assets or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such Additional Assets; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or deposit, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this paragraph, (ii) in accordance with this paragraph, other property or assets may be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All of the Net Available Cash received by the Company or such Restricted Subsidiary, as the case may be, from any Recovery Event shall be deposited directly into the Collateral Account and may be withdrawn by the Company or such Restricted Subsidiary to be invested in Additional Assets (which may include performance of a Restoration of the affected Collateral) in accordance with the preceding paragraph within 360 180 days from the receipt of such Net Available Cash, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to 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 a Wholly-Owned Subsidiary (in each case other than Indebtedness owed to the Company or another Wholly-Owned Subsidiary); and (D) fourth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C), to (w) the investment in or acquisition of Additional Assets, (x) the making of Temporary Cash Investments, (y) the prepayment, repayment or purchase of Indebtedness of the Company (other than Indebtedness owing to any Subsidiary of the Company) or Indebtedness of any Subsidiary (other than Indebtedness owed to the Company or any of its Restricted Subsidiaries) or (z) any other purpose otherwise permitted under the Indenture, in each case within the later of 45 days after the application of Net Available Cash in accordance with clauses (A), (B) and (C) or the date that is one year from the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A), (B), (C) or (D) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; provided, however, that the foregoing shall not be deemed to require any reduction in the commitment for Bank Indebtedness to less than $20 million. Any Notwithstanding the foregoing provisions, the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions of Collateral, Asset Swaps involving which has not been applied in accordance with this covenant at any time exceeds $5 million. The Company shall not be required to make an offer for Securities pursuant to this covenant if the transfer of Collateral, Recovery Events or prepayments Net Available Cash available therefor (after application of the Intercompany Note that are not applied or invested proceeds as provided in clause (a)(iii)(A)) is less than $5 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). For the purposes of this subsection (a) or in accordance with covenant, the Collateral Documents following will be deemed to constitute "Excess Collateral Proceedsbe 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 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 any 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." On
(b) In the 361st day after event of an Asset Disposition, Asset Swap, Recovery Event or prepayment Disposition that requires the purchase of the Intercompany Note Securities pursuant to this subsection clause (aa)(iii)(B), if the aggregate amount of Excess Collateral Proceeds exceeds $5.0 million, the Company will be required to make purchase Securities tendered pursuant to an offer ("Collateral Disposition Offer") to all holders by the Company for the Securities at a purchase price of Securities to purchase the maximum 101% of their principal amount of Securities to which the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Securities plus accrued and unpaid interest interest, if any, to the purchase date of purchase, in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture 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 integral multiples accordance with clauses (a)(iii)(C) or (D) above.
(c) The Company will comply, to the extent applicable, with the requirements of $1,000Section 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 aggregate amount provisions of Securities so validly tendered and not properly withdrawn pursuant to a Collateral Disposition Offer is less than the Excess Collateral Proceedsany securities laws or regulations conflict with provisions of this covenant, the Company may use any remaining Excess Collateral Proceeds for general corporate purposes, free will comply with the applicable securities laws and clear of any Liens created regulations and will not be deemed to have breached its obligations under the Indenture by the Collateral Documents, subject to other covenants contained in this Indenture. If the aggregate principal amount of Securities surrendered by Holders thereof exceeds the amount of Excess Collateral Proceeds, the Trustee shall select the Securities to be purchased on a pro rata basis on the basis of the aggregate principal amount of tenderedvirtue thereof.
Appears in 1 contract
Sources: Indenture (Mediaamerica Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition of Collateral unlessunless the following conditions are met:
(1) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market including as to the value to be determined on the date of contractually agreeing to such Asset Dispositionall noncash consideration), as determined in good faith by members of the Board of Directors (including as to the value of all non-cash consideration)Company’s senior management, of the Collateral shares and assets subject to such Asset Disposition (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraph)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, however, that with respect to the sale of 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 such Indebtedness is secured by a first or second priority Lien on the real estate property or properties sold;
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition received is applied by the Company (or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents and 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral Account; and)
(3A) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Securities; provided, howeverfirst, to the extent that the Credit Facility Collateral Documents restrict Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase secured Indebtedness of the Company or any Restricted Subsidiary or Indebtedness (other than Disqualified Stock) of any other Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company's ability to pledge such other consideration as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such other consideration or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such other consideration (which Cash or Cash Equivalents may be withdrawn by the Company from the Collateral Account to be invested in Additional Assets in the manner set forth under this subsection (a)); provided, further, that prior to such pledge, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) in accordance with this clause (3), other property or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments of the Intercompany Note may be withdrawn by the Company to be invested by the Company in Additional Assets within 360 days one year from the later of the date of (x) such Asset Disposition, Recovery Event, Asset Swap Disposition or prepayments and (y) the receipt of such Net Available Cash;
(B) second, which Additional Assets are thereupon with their acquisition added to the Collateral securing extent of the Notesbalance 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 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 Excess Proceeds (as defined below), to make an offer to the Holders of the Notes (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Notes (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, the Company or such 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, however, the Company will be deemed to have complied with clause (B) above if and to the extent that that, within 365 days after the Credit Facility Collateral Documents restrict later of the Company's ability to pledge such Additional Assets as CollateralAsset Disposition or the receipt of Net Available Cash, the Company shall either pledge other property or assets as Collateral having any of its Restricted Subsidiaries has entered into and not abandoned or rejected a fair market valuebinding agreement to make a capital expenditure or to acquire Replacement Assets, as determined in good faith by and that such capital expenditure or acquisition is thereafter completed within 180 days after the Board of Directors, at least equal to the fair market value end of such Additional Assets 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 deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of exceed such Additional Assets; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or depositamount, the Company must, within 30 days, make an offer to purchase the Notes, in accordance with clause (3)(C) above. Pending application of Net Available Cash pursuant to this Section 4.13, such Net Available Cash shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this paragraphSection 4.13, (ii) in accordance with this paragraph, other property or assets may the following are deemed to be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into cash equivalents:
(1) the Collateral Account having the fair market value required by said paragraph and that, in the case assumption of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All Indebtedness of the Net Available Cash 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 such any Restricted Subsidiary, as Subsidiary from the case may be, from any Recovery Event shall be deposited directly into the Collateral Account and may be withdrawn transferee that are converted by the Company or such Restricted Subsidiary to be invested in Additional Assets into cash within 180 days of receipt.
(which may include performance b) In the event of a Restoration an Asset Disposition that requires the purchase of Notes (and other Senior Indebtedness of the affected CollateralCompany) pursuant to clause (a)(3)(C) above, the Company will purchase Notes tendered pursuant to an offer by the Company for the Notes (and such other Senior Indebtedness of the Company) at a purchase price of 100% of their principal amount (or, in the event such other Senior Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest, if any, (or, in respect of such other Senior Indebtedness of the Company, such lesser price, if any, as may be provided for by the terms of such Senior Indebtedness of the Company) in accordance with the preceding paragraph within 360 days from procedures (including prorating in the receipt event of such Net Available Cash. Any Net Available Cash from Asset Dispositions of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events or prepayments of the Intercompany Note that are not applied or invested as provided in this subsection (aoversubscription) or in accordance with the Collateral Documents will be deemed to constitute "Excess Collateral Proceeds." On the 361st day after an Asset Disposition, Asset Swap, Recovery Event or prepayment of the Intercompany Note pursuant to this subsection (a), if the aggregate amount of Excess Collateral Proceeds exceeds $5.0 million, the Company will be required to make an offer ("Collateral Disposition Offer") to all holders of Securities to purchase the maximum principal amount of Securities to which the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Securities plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in this Indenture in integral multiples of $1,000. To the extent that the aggregate amount of Securities so validly tendered and not properly withdrawn pursuant to a Collateral Disposition Offer is less than the Excess Collateral Proceeds, the Company may use any remaining Excess Collateral Proceeds for general corporate purposes, free and clear of any Liens created by the Collateral Documents, subject to other covenants contained in this Indenture. If the aggregate principal amount purchase price of Securities surrendered by Holders thereof the securities tendered exceeds the amount of Excess Collateral ProceedsNet Available Cash allotted to their purchase, the Trustee shall Company will select the Securities securities to be purchased on a pro rata basis on but in round denominations, which in the basis case of the aggregate Notes will be denominations of $2,000 principal amount or multiples of tendered$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 Section 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 shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition of Collateral unless:
unless (1i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors 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 Collateral shares and assets subject to such Asset Disposition and (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraph);
(2ii) at least 75% of the consideration from such Asset Disposition thereof received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents cash equivalents. In the event and 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral Account; and
(3) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Securities; provided, however, to the extent that the Credit Facility Collateral Documents restrict Net Available Cash received by the Company's ability Company and 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 pledge the commencement of such other consideration as Collateral12-month period for which a consolidated balance sheet has been filed with the Commission or provided to the Trustee pursuant to Section 7.04(a)), then the Company shall either pledge other property or assets as Collateral having a fair market valueshall cause the relevant Restricted Subsidiary to:
(A) first, as determined in good faith to the extent the Company elects (or is required by the Board terms of Directorsany Indebtedness), at least equal 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 fair market value Company or an Affiliate of the Company) within 360 days from the later of the date of such other consideration Asset Disposition or deposit an amount the receipt of cash or Cash Equivalents into the Collateral Account having a value at least equal such Net Available Cash;
(B) second, to the fair market value extent of the balance of such other consideration (which Net Available Cash or Cash Equivalents may be withdrawn by the Company from the Collateral Account to be invested in Additional Assets in the manner set forth under this subsection (a)); providedafter application, furtherif any, that prior to such pledge, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) in accordance with this clause (3A), other property or assets may be pledged as Collateral having to the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments of the Intercompany Note may be withdrawn by extent the Company elects, to be invested by the Company in acquire Additional Assets within 360 days from the later of the date of (x) such Asset Disposition, Recovery Event, Asset Swap Disposition or prepayments and (y) the receipt of such Net Available Cash; and
(C) third, which Additional Assets are thereupon with their acquisition added to the Collateral securing extent of the Notesbalance of such Net Available Cash after application, if any, in accordance with clauses (A) and (B) (the “Offer Excess Proceeds”), and subject to paragraph (b) below, to make an offer to the holders of the Notes (and to holders of other Senior Indebtedness designated by the Company) to purchase Notes (and such other Senior Indebtedness) pursuant to and subject to the conditions set forth in paragraph (b) below; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, the Company or such Restricted Subsidiary shall 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, the Company and the Restricted Subsidiaries shall be entitled, but shall not be required, to apply any Net Available Cash in accor- dance with this paragraph except to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such Additional Assets as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such Additional Assets or deposit an amount of cash or aggregate Net Available Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such Additional Assets; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or deposit, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account all Asset Dispositions which are to be invested in Additional Assets in compliance with this paragraph, (ii) not applied in accordance with this paragraph, other property or assets may be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case exceeds US$10 million. Pending application of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All of the Net Available Cash pursuant to this covenant, such Net Available Cash shall be invested in Permitted Investments. For the purposes of this covenant, the following are deemed to be cash or cash equivalents: (x) the 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 such any Restricted Subsidiary, as Subsidiary from the case may be, from any Recovery Event shall be deposited directly into the Collateral Account and may be withdrawn transferee that are promptly converted by the Company or such Restricted Subsidiary to be invested in Additional Assets into cash.
(which may include performance b) In the event of a Restoration of the affected Collateral) in accordance with the preceding paragraph within 360 days from the receipt of such Net Available Cash. Any Net Available Cash from Asset Dispositions of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events or prepayments of the Intercompany Note that are not applied or invested as provided in this subsection (a) or in accordance with the Collateral Documents will be deemed to constitute "Excess Collateral Proceeds." On the 361st day after an Asset Disposition, Asset Swap, Recovery Event or prepayment of Disposition that requires an offer to purchase the Intercompany Note Notes (and other Senior Indebtedness) pursuant to this subsection clause (a), if the aggregate amount of Excess Collateral Proceeds exceeds $5.0 milliona)(C) above, the Company will be required to make purchase (an offer ("Collateral Disposition “Asset Sale Offer") to ”), from all holders of Securities to purchase the maximum Holders issued under this Indenture, that aggregate principal amount of Securities to which the Collateral Disposition Offer applies that may Notes as can be purchased out by application of the such Offer Excess Collateral Proceeds, Proceeds at an offer a price in cash in an amount equal to 100% of the principal amount of the Securities plus thereof plus, in each case, accrued and unpaid interest interest, if any, to the date purchase date. Each Asset Sale Offer shall remain open for a period of purchase, in accordance with the procedures set forth in this Indenture in integral multiples of $1,00020 business days or such longer period as may be required by law. To the extent that the aggregate amount purchase price for the applicable issue of Securities so validly Notes tendered and not properly withdrawn pursuant to a Collateral Disposition an Asset Sale Offer is less than the Offer Excess Collateral Proceeds, the Company or any Restricted Subsidiary may use any remaining Excess Collateral Proceeds such deficiency for general corporate purposes, free and clear of any Liens created by the Collateral Documents, subject to other covenants contained in this Indenture. If the aggregate principal amount of Securities surrendered purchase price for the Notes validly tendered and not withdrawn by Holders holders thereof exceeds the amount of Notes which can be purchased with the Offer Excess Collateral Proceeds, the Trustee shall select the Securities Notes to be purchased will be selected on a pro rata basis 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 basis date fixed for Purchase of Notes validly tendered and not withdrawn, which date shall be not later than the 30th Business Day following the mailing of such Asset Sale Offer (the “Asset Sale Offer Purchase Date”). The notice, which shall govern the terms of the aggregate Asset Sale Offer, shall include such disclosures as are required by law and shall state:
(i) 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 accrued interest, if any) for each Note, the Asset Sale Offer Purchase Date and the date on which the Asset Sale Offer expires;
(iii) that any Note not tendered for payment will continue to accrue interest in accordance with the terms thereof;
(iv) that, unless the Company shall default in the payment of the 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) 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 tenderedNotes 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 part will be issued Notes of like tenor equal in principal amount to the unpurchased portion of the Notes surrendered;
(viii) the instructions that Holders must follow in order to tender their Notes; and
(ix) information concerning the business of the 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
Sources: Indenture (Alestra)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition of Collateral unless:
(1i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the Fair Market Value of the shares and assets subject to such Asset Disposition,
(ii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash, assets useful in a Permitted Business or Permitted Securities; provided that the amount of any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition shall be deemed cash for the purposes of this provision (but for no other purpose) so long as such amount, taken together with the Fair Market Value when received of all other Designated Non-Cash Consideration that is at that time outstanding (i.e., that has not been sold for or otherwise converted into cash), does not exceed $25,000,000, and
(iii) 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, receives consideration 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 (including as to the value of all non-cash consideration), of the Collateral subject to such Asset Disposition (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraph);
(2) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents and 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral Account; and
(3) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Securities; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such other consideration as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such other consideration or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such other consideration (which Cash or Cash Equivalents may be withdrawn by the Company from the Collateral Account to be invested in Additional Assets in the manner set forth under this subsection (a)); provided, further, that prior to such pledge, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) in accordance with this clause (3), other property or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments of the Intercompany Note may be withdrawn by the Company to be invested by the Company in Additional Assets within 360 days from after the later of the date of (x) such Asset Disposition, Recovery Event, Asset Swap Disposition or prepayments and (y) the receipt of such Net Available Cash, which Additional Assets are thereupon with their acquisition added to the Collateral securing the Notes; provided, however:
(1) first, to the extent that the Credit Facility Collateral Documents restrict Company elects (or is required by the terms of any Indebtedness), to prepay, repay, purchase, repurchase, redeem, retire, defease or otherwise acquire for value Senior Indebtedness of the Company's ability , Senior Indebtedness of a Subsidiary Guarantor or Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to pledge such Additional Assets as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market valuean Affiliate of the Company);
(2) second, as determined in good faith by the Board of Directors, at least equal to the fair market value extent of such Additional Assets or deposit an amount the balance of cash or Net Available Cash Equivalents into the Collateral Account having a value at least equal after application, in accordance with clause (1), to the fair market value of such Additional Assets; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or deposit, extent the Company shall have delivered or such Restricted Subsidiary elects, to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested reinvest in Additional Assets (including by means of an Investment in compliance Additional Assets by a Restricted Subsidiary with this paragraph, (ii) in accordance with this paragraph, other property or assets may be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All of the Net Available Cash received by the Company or another Restricted Subsidiary);
(3) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (1) and (2), to make an Offer (as defined in Section 3.09(b)) to purchase Notes pursuant to and subject to the conditions of 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
(4) fourth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (1), (2) and (3), for any general corporate purpose not prohibited by the terms of this Indenture; provided, however that in connection with any prepayment, repayment, purchase, repurchase, redemption, retirement, defeasance or other acquisition for value of Indebtedness pursuant to clause (1) or (3) above, the Company or such Restricted SubsidiarySubsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, as repaid, purchased, repurchased, redeemed, retired, defeased or otherwise acquired for value. Notwithstanding the case may beforegoing provisions of this Section 3.09, the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this Section 3.09 except to the extent that the aggregate Net Available Cash from all Asset Dispositions that is not applied in accordance with this Section 3.09 exceeds $25,000,000. For the purposes of this Section 3.09, 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 Recovery Event shall be deposited directly into Restricted Subsidiary (other than obligations in respect of Disqualified Stock and Preferred Stock of a Subsidiary Guarantor) and the Collateral Account and may be withdrawn release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and
(B) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary to be invested in Additional Assets into cash.
(which may include performance b) In the event of a Restoration of the affected Collateral) in accordance with the preceding paragraph within 360 days from the receipt of such Net Available Cash. Any Net Available Cash from Asset Dispositions of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events or prepayments of the Intercompany Note that are not applied or invested as provided in this subsection (a) or in accordance with the Collateral Documents will be deemed to constitute "Excess Collateral Proceeds." On the 361st day after an Asset Disposition, Asset Swap, Recovery Event or prepayment Disposition that requires the purchase of the Intercompany Note Notes pursuant to this subsection (aSection 3.09(a)(iii)(3), if the aggregate amount of Excess Collateral Proceeds exceeds $5.0 million, the Company will be required (i) to make purchase Notes tendered pursuant to an offer by the Company for the Notes ("Collateral Disposition the “Offer"”) to all holders at a purchase price of Securities to purchase the maximum principal amount of Securities to which the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, at an offer price in cash in an amount equal to 100% of the their principal amount plus accrued and unpaid interest thereon to the date of purchase (subject to the right of Holders of record on the relevant date to receive interest due on the relevant interest payment date) in accordance with the procedures, including prorating in the event of oversubscription, set forth in this Indenture and (ii) to purchase or otherwise repay other Senior Subordinated Indebtedness of the Securities plus 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 purchaseacquisition, 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 procedures set forth Net Available Cash available therefor (after application of the proceeds as provided in this Indenture 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 the 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 $1,0001,000 of principal amount, at the applicable purchase price. To the extent that the aggregate amount of Securities so validly tendered and The notice shall specify a purchase date not properly withdrawn pursuant to a Collateral Disposition Offer is less than 30 days nor more than 60 days after the Excess Collateral Proceedsdate 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 use any remaining Excess Collateral Proceeds for general corporate purposesmay, free and clear at its option, notify the holders that such reports are available to them in electronic format through the SEC’s ▇▇▇▇▇ system, (2) a description of any Liens created by material developments in the Collateral Documents, subject Company’s business subsequent to other covenants contained in this Indenture. If the aggregate principal amount of Securities surrendered by Holders thereof exceeds the amount of Excess Collateral Proceeds, the Trustee shall select the Securities to be purchased on a pro rata basis on the basis date of the aggregate principal amount latest of tenderedsuch 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 Parent and Issuer shall not, and will shall not permit any of its their respective Restricted Subsidiaries to, make directly or indirectly, consummate any Asset Disposition of Collateral unless:
(1i) the Company Parent, Issuer or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Disposition 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 (including as to the value of all non-cash consideration), as determined in good faith by the applicable Board of Directors, of the Collateral shares and assets subject to such Asset Disposition (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraph)Disposition;
(2ii) in the case of any Asset Disposition, including a license of rights, (1) at least 7580% of the consideration thereof received by Parent, Issuer or such Restricted Subsidiary is in the form of cash or cash equivalents 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); or (y)
(A) the Consolidated Coverage Ratio improves after giving effect to the transaction and (B) the aggregate book value of Issuer's assets that are subject to licensing of rights made in reliance upon this clause (2)(y) does not exceed 10% of Parent's consolidated total assets as of the end of the most recent fiscal quarter for which financial statements have been either included in a report filed with the SEC or filed with the Trustee; and
(iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition received is applied by the Company Parent, Issuer or such Restricted Subsidiary, as the case may be:
(A) first, to the extent 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 Wholly Owned Subsidiary (in each case other than Indebtedness owed to Parent, Issuer or any other Affiliate of Parent or Issuer) within one year from the form 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 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), to make an Offer to the holders of the Securities (and to holders of other Senior Indebtedness designated by Parent or Issuer) to purchase Securities (and such other Senior Indebtedness) pursuant to and subject to the conditions of Section 4.06(b); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, 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.
(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this Section 4.06(a) exceeds $5,000,000. Pending application of Net Available Cash pursuant to this Section 4.06(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 cash equivalents: (x) the assumption of Indebtedness of Parent, Issuer or any Restricted Subsidiary and 100% 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 therefrom of any Foreign Asset Sale is deposited directly 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 Company into applicable Restricted Subsidiary so long, but only so long, as the Collateral Account; and
(3) the remaining consideration from such Asset Disposition that is applicable local law shall not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Securities; provided, however, permit repatriation to the extent that United States (Parent or Issuer shall, subject to the Credit Facility Collateral Documents restrict following paragraph, promptly take or cause the Company's ability applicable Restricted Subsidiary to pledge such other consideration as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith promptly take all actions within their respective control by the Board applicable local law to permit such repatriation). Once such repatriation of Directors, at least equal to the fair market value any of such other consideration or deposit an amount of cash or affected Net Available Cash Equivalents into is permitted under the Collateral Account having a value at least equal to the fair market value of applicable local law, such other consideration (which repatriation shall be immediately effected and such repatriated Net Available Cash or Cash Equivalents may shall be withdrawn by the Company from the Collateral Account to be invested in Additional Assets applied in the manner set forth under in this subsection (a)); providedSection 4.06 as if such Asset Disposition had occurred on the date of such repatriation. To the extent that the Board of Directors determines, furtherin good faith, that prior 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 Securities (and other Senior Indebtedness) pursuant to Section 4.06(a)(iii)(C), Issuer shall be required to purchase Securities tendered pursuant to an offer by Issuer for the Securities (and other Senior Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior 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 Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Indebtedness) in accordance with the procedures (including prorationing in the event of oversubscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and 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 Issuer 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 pledgeQuarterly Report, deposit other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or withdrawalcorresponding successor reports), (ii) a description of material developments in Issuer's business subsequent to the Company 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 have delivered deliver to the Trustee an Officers' Certificate stating, as applicable, that to (i) in accordance with this clause the amount of the Offer (3), other property or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and that, in the case of clause (i"Offer Amount"), (ii) or (iii), all conditions precedent provided for in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments of the Intercompany Note may be withdrawn by the Company to be invested by the Company in Additional Assets within 360 days from the later of the date of (x) such Asset Disposition, Recovery Event, Asset Swap or prepayments and (y) the receipt of such Net Available Cash, which Additional Assets are thereupon with their acquisition added to the Collateral securing the Notes; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such Additional Assets as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such Additional Assets or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such Additional Assets; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or deposit, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this paragraph, (ii) in accordance with this paragraph, other property or assets may be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All allocation of the Net Available Cash received by from the Company 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 such Restricted Subsidiarywith a paying agent (or, if Issuer is acting as the case may beits own paying agent, from any Recovery Event shall be deposited directly into the Collateral Account segregate and may be withdrawn by the Company or such Restricted Subsidiary to be invested hold in Additional Assets (which may include performance of a Restoration of the affected Collateraltrust) in accordance with Temporary Cash Investments, maturing on the preceding paragraph within 360 days from the receipt of such Net Available Cash. Any Net Available Cash from Asset Dispositions of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events or prepayments of the Intercompany Note that are not applied or invested as provided in this subsection (a) or in accordance with the Collateral Documents will be deemed to constitute "Excess Collateral Proceeds." On the 361st last day after an Asset Disposition, Asset Swap, Recovery Event or prepayment of the Intercompany Note pursuant to this subsection (a), if the aggregate amount of Excess Collateral Proceeds exceeds $5.0 million, the Company will be required to make an offer ("Collateral Disposition Offer") to all holders of Securities to purchase the maximum principal amount of Securities to which the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Securities plus accrued and unpaid interest prior to the date of purchase, in accordance with the procedures set forth in this Indenture in integral multiples of $1,000. To the extent that the aggregate amount of Securities so validly tendered and not properly withdrawn pursuant to a Collateral Disposition Offer is less than the Excess Collateral Proceeds, the Company may use any remaining Excess Collateral Proceeds for general corporate purposes, free and clear of any Liens created by the Collateral Documents, subject to other covenants contained in this Indenture. If the aggregate principal amount of Securities surrendered by Holders thereof exceeds the amount of Excess Collateral Proceeds, the Trustee shall select the Securities to be purchased on a pro rata basis Purchase Date or on the basis of the aggregate principal amount of tenderedPurchase
Appears in 1 contract
Sources: Indenture (Warner Chilcott PLC)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition of Collateral unless:
: (1) in the case of any Asset Disposition involving shares or assets having a value equal to or in excess of $1.0 million, the Company or such Restricted Subsidiary, as the case may be, receives consideration 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 (including as to the value of all non-cash consideration), of the Collateral shares and assets subject to such Asset Disposition (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraph);
Disposition; (2) in the case of any Asset Disposition involving shares or assets having a value equal to or in excess of $1.0 million, at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents Equivalents; and (3) an amount equal to 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral Account; and
(3) the remaining consideration from such Asset Disposition is applied by the Company or such Restricted Subsidiary, as the case may be (a) to prepay, repay or purchase secured Indebtedness of the Company or secured Indebtedness of a Restricted Subsidiary (other than any Disqualified Stock or Guarantor Subordinated Obligations of a Restricted Subsidiary that is not a Subsidiary Guarantor), in each case other than Indebtedness owed to the form Company or an Affiliate of cash or Cash Equivalents the Company (other than to the extent such Indebtedness is thereupon permitted under Sections 3.3(b)(1) , 3.3(b)(2)(solely with its acquisition pledged as Collateral respect to secure Guarantees under this Agreement), 3.3(b)(4)(a), 3.3(b)(4)(c)(solely with respect to the Securities), Section 3.3(b)(6), Section 3.3(b)(10) and Section 3.3(b)(11)), within 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such other consideration as Collateralthis clause (a), the Company shall either pledge other property or assets as Collateral having a fair market value, as determined such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in good faith by the Board of Directors, at least an amount equal to the fair market value of such other consideration principal amount so prepaid, repaid or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such other consideration (which Cash or Cash Equivalents may be withdrawn by the Company from the Collateral Account to be invested in Additional Assets in the manner set forth under this subsection (a))purchased; provided, further, that prior to such pledge, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) in accordance with this clause (3), other property or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iiib) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments of the Intercompany Note may be withdrawn by the Company to be invested by the Company invest in Additional Assets within 360 days from the later of the date of (x) such Asset Disposition, Recovery Event, Asset Swap Disposition or prepayments and (y) the receipt of such Net Available Cash, which Additional Assets are thereupon ; provided that pending the final application of any such Net Available Cash in accordance with their acquisition added to the Collateral securing the Notes; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such Additional Assets as CollateralSection 3.7(a)(3)(a) or Section 3.7(a)(3)(b) above, the Company shall either pledge other property and its Restricted Subsidiaries may temporarily reduce Indebtedness or assets as Collateral having a fair market value, as determined otherwise invest such Net Available Cash in good faith any manner not prohibited by the Board of Directors, at least equal to the fair market value of such Additional Assets or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such Additional Assetsthis Indenture; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or deposit, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this paragraph, (ii) in accordance with this paragraph, other property or assets may be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case of clause (i)an Asset Disposition of Collateral, (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All of the Net Available Cash received by the Company or such Restricted Subsidiary, as the case may be, from any Recovery Event shall cash will be deposited directly into in the Collateral Account and may be withdrawn by the Company or such Restricted Subsidiary to be invested in Additional Assets (which may include performance of a Restoration of the affected Collateral) otherwise in accordance with the preceding paragraph within 360 days from the receipt of such Net Available Cash. Intercreditor Agreement.
(b) Any Net Available Cash from Asset Dispositions of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events or prepayments of the Intercompany Note that are not applied or invested as provided in this subsection (aSection 3.7(a)(3) or in accordance with the Collateral Documents will be deemed to constitute "“Excess Collateral Proceeds." ” On the 361st day after an Asset Disposition, Asset Swap, Recovery Event or prepayment of the Intercompany Note pursuant to this subsection (a), if the aggregate amount of Excess Collateral Proceeds exceeds $5.0 million, the Company will be required to make an offer ("Collateral “Asset Disposition Offer"”) to all holders Holders of Securities to purchase the maximum principal amount of Securities to which the Collateral Asset Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Securities plus accrued and unpaid interest to but not including the date of purchase, in accordance with the procedures set forth in this Indenture in denominations of $1 principal amount and integral multiples of $1,0001 in excess thereof. To the extent that the aggregate amount of Securities so validly tendered and not properly withdrawn pursuant to a Collateral an Asset Disposition Offer is less than the Excess Collateral Proceeds, the Company may use any remaining Excess Collateral Proceeds (x) for general corporate purposes, free and clear of any Liens created by the Collateral Documents, subject to other covenants contained in this Indenture; provided that to the extent that the assets disposed of in such asset sale constitutes Collateral, any assets purchased with such Excess Proceeds shall be pledged as Collateral pursuant to the Collateral Documents or (y) to make Restricted Payments in accordance with Section 3.5(a) (such Excess Proceeds not so invested, applied or used for general corporate purposes, “Extra Asset Sale Proceeds”). If the aggregate principal amount of Securities surrendered by Holders holders thereof surrendered by holders or lenders, collectively, exceeds the amount of Excess Collateral Proceeds, the Trustee shall select the Securities to be purchased on a pro rata basis on the basis in authorized denominations of the aggregate principal amount of tendered Securities. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(1) The Asset Disposition Offer shall remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Securities required to be purchased pursuant to this Section 3.7 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Securities validly tendered in response to the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an 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 Disposition Offer. 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 Securities or portions thereof 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 Securities so validly tendered and not properly withdrawn, in each case in denominations of $1 and integral multiples of $1 in excess thereof. 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 3.7. 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 Securities an amount equal to the purchase price of the 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 Company will promptly issue a new Security, and the Trustee, upon delivery of a Company Order, will authenticate and mail or deliver such new Security to such Holder, in a principal amount equal to any unpurchased portion of the Security surrendered; provided that each such new Security will be in a principal amount of $1 or an integral multiple of $1 in excess thereof. 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 Disposition Offer on the Asset Disposition Purchase Date. For the purposes of this Section 3.7, 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 of a Restricted Subsidiary (other than Guarantor Subordinated Indebtedness, Guarantor Subordinated Obligations or Disqualified Stock of any Wholly-Owned Subsidiary that is a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition (in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with Section 3.7(a)(3)(a)); and
(2) securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(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 Indenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 3.7, 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
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition of Collateral unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors (including as to the value of all non-cash consideration)Company, of the Collateral shares and assets subject to such Asset Disposition (notwithstanding including, for the foregoingavoidance of doubt, the consideration received by the Company or any of its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraphif 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 from such Asset Disposition Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis) (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents and 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral AccountEquivalents; and
(3) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Securities; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such other consideration as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such other consideration or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such other consideration (which Cash or Cash Equivalents may be withdrawn by the Company from the Collateral Account to be invested in Additional Assets in the manner set forth under this subsection (a)); provided, further, that prior to such pledge, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) in accordance with this clause (3), other property or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments of the Intercompany Note may be withdrawn by the Company to be invested by the Company in Additional Assets within 360 450 days from the later of (A) the date of (x) such Asset Disposition, Recovery Event, Asset Swap or prepayments Disposition and (yB) the receipt of such Net Available Cash, which Additional Assets are thereupon with their acquisition added to the Collateral securing the Notes; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such Additional Assets as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such Additional Assets or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such Additional Assets; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or deposit, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this paragraph, (ii) in accordance with this paragraph, other property or assets may be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All of the Net Available Cash received from such Asset Disposition (as may be extended by an Acceptable Commitment as set forth below, the “Proceeds Application Period”), an amount equal to 100% of such Net Available Cash is applied, to the extent the Company or such any Restricted Subsidiary, as the case may be, from elects:
(i) (a) to reduce, prepay, repay or purchase any Recovery Event shall be deposited directly into Secured Indebtedness or Indebtedness under the Collateral Account and may be withdrawn by Credit Agreement (or any Refinancing Indebtedness in respect thereof), (b) to reduce, prepay, repay or purchase Pari Passu Indebtedness; provided that (other than 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 Company or any Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (i), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to be invested 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 (which may include performance 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 Restoration capital or other lease valued at the present value of the affected Collateral) in accordance with minimum amount of payments under such lease (as reasonably determined by the preceding paragraph within 360 days from the receipt Company); provided, however, that a binding agreement shall be treated as a permitted application of such Net Available Cash. Any Net Available Cash from Asset Dispositions the date of Collateral, Asset Swaps involving such commitment with the transfer good faith expectation that an amount equal to Net Available Cash will be applied to satisfy such commitment within 180 days of Collateral, Recovery Events or prepayments such commitment (an “Acceptable Commitment”); or
(iii) any combination of the Intercompany Note foregoing; provided that are not applied (1) pending the final application of the amount of any such Net Available Cash pursuant to this Section 3.5, the Company or invested as provided in this subsection the applicable Restricted Subsidiaries may apply such Net Available Cash temporarily to reduce Indebtedness (aincluding 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 the Collateral Documents will be deemed clause (ii) above with respect to constitute "Excess Collateral Proceeds." On the 361st day after an such Asset Disposition. If, with respect to any Asset Disposition, Asset Swap, Recovery Event or prepayment at the expiration of the Intercompany Note pursuant Proceeds Application Period with respect to this subsection such Asset Disposition, there remains Net Available Cash in excess of the greater of $100.0 million and 25% of LTM EBITDA (asuch 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”), if then subject to the aggregate amount of Excess Collateral Proceeds exceeds $5.0 millionlimitations with respect to Foreign Dispositions set forth below, the Company will be required to shall make an offer ("Collateral an “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 Pari Passu Indebtedness, to all holders of Securities such Pari Passu Indebtedness, to purchase the maximum principal amount of Securities to which the Collateral Disposition Offer applies such Notes and Pari Passu Indebtedness, as appropriate, on a pro rata basis, that may be purchased out of the such Excess Collateral Proceeds, if any, at an offer price 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 Indebtedness was issued with original issue discount, 100% of the Securities accreted value thereof), plus accrued and unpaid interest interest, if any (or 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 purchasesuch 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 $1,0001,000 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 Securities so Notes and, if applicable, any other Pari Passu Indebtedness validly tendered and not properly withdrawn pursuant to a Collateral 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 Excess Collateral Proceedsamount offered in an Asset Disposition Offer, the Company may use include any remaining Excess Collateral Proceeds (or, in the case of an Advance Offer, the Advance Portion) in Declined Excess Proceeds, and use such Declined Excess Proceeds for general corporate purposes, free and clear of any Liens created purpose not otherwise prohibited by the Collateral Documents, subject to other covenants contained in this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Securities surrendered by Holders thereof the Notes or, if applicable, Pari Passu Indebtedness validly tendered pursuant to any Asset Disposition Offer exceeds the amount of Excess Collateral ProceedsProceeds (or, in the case of an Advance Offer, the Trustee Advance Portion), the Company shall select allocate the Securities 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 tenderedtendered 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;
(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 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 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 3.5 that is at that time outstanding, not to exceed the greater of $100.0 million and 25% of LTM EBITDA (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(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 have breached its obligations described in this Indenture by virtue of compliance therewith.
(g) The provisions of this Indenture relative to the Company’s obligation to make an offer to repurchase the Notes as a result of an Asset Disposition may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding.
Appears in 1 contract
Sources: Indenture (TripAdvisor, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition of Collateral unless:
(1i) the Company Issuer or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (such fair market value to be as determined on at the date time of contractually agreeing contractual agreement to such Asset Disposition), as determined in good faith by the Board of Directors (including as to the value of all non-cash consideration), ) of the Collateral shares and assets subject to such Asset Disposition (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraph)Disposition;
(2ii) at least 75% of the consideration from such Asset Disposition thereof received by the Company Issuer or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents and cash equivalents;
(iii) an amount equal to 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral Account; and
(3) the remaining consideration from such Asset Disposition Disposition,
(A) to the extent the Issuer elects (or is required by the terms of any Indebtedness), is used to prepay, repay, redeem or purchase (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 the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Securities; provided, however, each case other than Indebtedness owed to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such other consideration as Collateral, the Company shall either pledge other property Issuer or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such other consideration or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such other consideration (which Cash or Cash Equivalents may be withdrawn by the Company from the Collateral Account to be invested in Additional Assets in the manner set forth under this subsection (a)); provided, further, that prior to such pledge, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) in accordance with this clause (3), other property or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments Affiliate of the Intercompany Note may be withdrawn by the Company to be invested by the Company in Additional Assets Issuer) within 360 450 days from the later of the date of (x) such Asset Disposition, Recovery Event, Disposition or the receipt of such Net Available Cash;
(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 Swap Disposition or prepayments and (y) the receipt of such Net Available Cash, which 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 are thereupon with their acquisition added Assets”); and
(C) to the Collateral securing extent of the Notesbalance of such Net Available Cash after application (if any) in accordance with clauses (A) and (B) and the expiration of the time periods set forth therein, to make an offer to the Holders of the Notes (and to holders of other Pari Passu Indebtedness of the Issuer designated by the Issuer) to purchase Notes (and such other Pari Passu Indebtedness of the Issuer) pursuant to and subject to the conditions contained in this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness made to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such Additional Assets as Collateralsatisfy clause (A) or (C) above, the Company Issuer or such Restricted Subsidiary shall either pledge other property or assets as Collateral having a fair market value, as determined permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in good faith by the Board of Directors, at least an amount equal to the fair market value principal amount so prepaid, repaid or purchased. For the purposes of such Additional Assets or deposit an amount of this Section 4.08, the following are deemed to be cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such Additional Assets; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or deposit, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that cash equivalents:
(i) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this paragraph, assumption or discharge of any liabilities (ii) in accordance with this paragraph, other property or assets may be pledged as Collateral having shown on the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All of the Net Available Cash received by the Company Issuer’s or such Restricted Subsidiary, as ’s most recent balance sheet or in the case may be, from any Recovery Event shall be deposited directly into footnotes thereto) of the Collateral Account and may be withdrawn by the Company Issuer or such Restricted Subsidiary (other than liabilities that are by their terms subordinated to be invested in Additional Assets (the Notes) that are assumed by the transferee of such assets and for which may include performance of a Restoration the Issuer and all of the affected CollateralRestricted Subsidiaries have been released by all creditors in writing;
(ii) securities received by the Issuer or any 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 conversion;
(iii) all Temporary Cash 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 subsequent changes in value) 5.0% of Total Assets.
(b) In the event of an Asset Disposition that requires an offer to purchase the Notes (and other Pari Passu Indebtedness of the Issuer) pursuant to Section 4.08(a)(iii)(C), the Issuer shall purchase Notes tendered pursuant to an offer by the Issuer for the Notes (and such other Pari Passu Indebtedness) at a purchase price of 100% of their principal amount (or, in the event such other 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 Pari Passu Indebtedness of the Issuer, such lesser price, if any, as may be provided for by the terms of such Pari Passu Indebtedness) in accordance with the preceding paragraph within 360 days from procedures (including prorating in the receipt event of such Net Available Cash. Any Net Available Cash from Asset Dispositions of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events or prepayments of the Intercompany Note that are not applied or invested as provided in this subsection (aoversubscription) or in accordance with the Collateral Documents will be deemed to constitute "Excess Collateral Proceeds." On the 361st day after an Asset Disposition, Asset Swap, Recovery Event or prepayment of the Intercompany Note pursuant to this subsection (a), if the aggregate amount of Excess Collateral Proceeds exceeds $5.0 million, the Company will be required to make an offer ("Collateral Disposition Offer") to all holders of Securities to purchase the maximum principal amount of Securities to which the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Securities plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in this Indenture in integral multiples of $1,000. To the extent that the aggregate amount of Securities so validly tendered and not properly withdrawn pursuant to a Collateral Disposition Offer is less than the Excess Collateral Proceeds, the Company may use any remaining Excess Collateral Proceeds for general corporate purposes, free and clear of any Liens created by the Collateral Documents, subject to other covenants contained in this Indenture. If the aggregate principal amount purchase price of Securities surrendered by Holders thereof the securities tendered pursuant to the Offer exceeds the amount of Excess Collateral ProceedsNet Available Cash allotted to their purchase, the Trustee Issuer shall select the Securities 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 (and 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 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, 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 basis 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 the aggregate principal amount of tenderedthis Section 4.
Appears in 1 contract
Sources: Indenture (Amsurg Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make consummate any Asset Disposition of Collateral unless:
unless (1i) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Disposition 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 (including as to the value of all non-cash consideration), of the Collateral subject to such Asset Disposition (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraph);
(2) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents and 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral Account; and
(3) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Securities; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such other consideration as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such other consideration or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such other consideration (which Cash or Cash Equivalents may be withdrawn by the Company from the Collateral Account to be invested in Additional Assets in the manner set forth under this subsection (a)); provided, further, that prior to such pledge, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) in accordance with this clause (3), other property or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments of the Intercompany Note may be withdrawn by the Company shares and assets subject to be invested by the Company in Additional Assets within 360 days from the later of the date of (x) such Asset Disposition, Recovery Event, Asset Swap or prepayments and (yii) at least 75% of the receipt consideration therefor received by the Company or such Restricted Subsidiary is in the form of such cash or cash equivalents, provided, however, that this clause (ii) shall not apply if the Company or a Restricted Subsidiary is disposing of assets in exchange for Additional Assets. 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, which Additional Assets are thereupon with their acquisition added to the Collateral securing Company or such Restricted Subsidiary shall (i) within 365 days after the Notes; provided, however, date such Net Available Cash is received and to the extent that the Credit Facility Collateral Documents restrict 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, purchase or legally defease Senior Indebtedness of the Company or such Restricted Subsidiary, in each case owing to a Person other than the Company or any Affiliate of the Company's ability , or (B) invest an equal amount, or the amount not so applied pursuant to pledge such Additional Assets as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such Additional Assets or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such Additional Assets; provided, further, that prior to such investment clause (and the related withdrawal from the Collateral AccountA), pledge or deposit, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets (including by means of an Investment in compliance Additional Assets by a Subsidiary Guarantor with this paragraph, (ii) in accordance with this paragraph, other property or assets may be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All of the Net Available Cash received by the Company or another Subsidiary Guarantor) and (ii) apply such excess Net Available Cash (to the extent not applied pursuant to clause (i)) as provided in the following paragraphs of this Section 4.7; provided, however, that in connection with any prepayment, repayment or purchase of Senior Indebtedness pursuant to clause (A) above (other than the repayment of Senior Indebtedness Incurred under a Bank Credit Agreement to fund the purchase of an asset which is sold by the Company within 180 days of its purchase pursuant to a Sale/Leaseback Transaction), the Company or such Restricted SubsidiarySubsidiary shall 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. The amount of Net Available Cash required to be applied pursuant to clause (ii) above and not theretofore so applied shall constitute "Excess Proceeds." Pending applica- tion of Net Available Cash pursuant to this provision, such Net Available Cash shall be invested in Temporary Cash Investments. If at any time the aggregate amount of Excess Proceeds not theretofore subject to an Excess Proceeds Offer (as defined below) totals at least $3 million, the Company shall, not later than 30 days after the end of the period during which the Company is required to apply such Excess Proceeds pursuant to clause (i) of the immediately preceding paragraph of this Section 4.7(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 of Securities and Other Qualified Securities (determined on a pro rata basis according to the accreted value or aggregate principal amount, as the case may be, from any Recovery Event shall be deposited directly into the Collateral Account and may be withdrawn by the Company or such Restricted Subsidiary to be invested in Additional Assets (which may include performance of a Restoration of the affected CollateralSecurities and Other Qualified Securities) in accordance with the preceding paragraph within 360 days from the receipt of such Net Available Cash. Any Net Available Cash from Asset Dispositions of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events or prepayments of the Intercompany Note that are not applied or invested as provided in this subsection (a) or in accordance with the Collateral Documents will be deemed to constitute "Excess Collateral Proceeds." On the 361st day after an Asset Disposition, Asset Swap, Recovery Event or prepayment of the Intercompany Note pursuant to this subsection (a), if the aggregate amount of Excess Collateral Proceeds exceeds $5.0 million, the Company will be required to make an offer ("Collateral Disposition Offer") to all holders of Securities to purchase the maximum principal amount of Securities to which the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, at an offer price in cash in an amount 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 the Securities plus such Securities, plus, in each case, accrued and unpaid interest (if any) to the date of purchasepurchase (the "Excess Proceeds Payment"). Upon completion of an Excess Proceeds Offer the amount of Excess Proceeds remaining after application pursuant to such Excess Proceeds Offer, (including payment of the purchase price for Securities duly tendered) may be used by the Company for any corporate purpose (to the extent not otherwise prohibited by this Indenture). For the purposes of this Section 4.7, the following are deemed to be cash or cash equivalents: (x) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in accordance connection with such Asset Disposition, and (y) securities received by the procedures set forth Company or any Restricted Subsidiary from the transferee that are immediately converted by the Company or such Restricted Subsidiary into cash.
(b) Promptly, and in this Indenture any event within 30 days after the Company becomes obligated to make an Excess Proceeds Offer, the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, at the address appearing in the Security Register, 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 $1,0001,000 of principal amount, at the applicable purchase price. To The notice, which shall govern the extent terms of the Excess Proceeds Offer, shall include such disclosures as are required by law and shall specify
(i) that the aggregate Excess Proceeds Offer is being made pursuant to this Section 4.7; (ii) the purchase price (including the amount of accrued interest, if any) for each Security and the purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date"); (iii) that any Security not tendered or accepted for payment will continue to accrue interest in accordance with the terms thereof; (iv) that, unless the Company defaults in making the payment, any Security accepted for payment pursuant to the Excess Proceeds Offer shall cease to accrue interest on and after the Purchase Date; (v) that Securityholders electing to have Securities purchased pursuant to an Excess Proceeds Offer will be required to surrender their Securities to the Paying Agent at the address specified in the notice at least three business days prior to the 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 Securityholders will be entitled to withdraw their election if the Paying Agent receives, not later than one business day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Securityholder, the principal amount of Securities so validly the Securityholder delivered for purchase, the Security certificate number (if any) and a statement that such Securityholder is withdrawing its election to have such Securities purchased; (vii) that if Securities in a principal amount in excess of the aggregate principal amount which the Company has offered to purchase are tendered and not properly withdrawn pursuant to a Collateral Disposition Offer is less than the Excess Collateral ProceedsProceeds Offer, the Company shall purchase Securities on a pro rata basis among the Securities tendered (with such adjustments as may use any remaining Excess Collateral Proceeds for general corporate purposes, free and clear of any Liens created be deemed appropriate by the Collateral DocumentsCompany so that only Securities in denominations of $1,000 or integral multiples of $1,000 shall be acquired); (viii) that Securityholders whose Securities are purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered; and (ix) the instructions that Securityholders must follow in order to tender their Securities.
(c) 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 "Excess Proceeds 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 4.7(a). Upon the expiration of the period for which the Excess Proceeds Offer remains open (the "Excess Proceeds Offer Period"), the Company shall deliver to the Trustee for cancella- tion the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. Not later than 11:00 a.m. (New York City time) on the Purchase Date, the Company shall irrevocably deposit with the Trustee or with a paying agent (or, if the Company is acting as Paying Agent, segregate and hold in trust) an amount in cash sufficient to pay the Excess Proceeds Offer Amount for all Securities properly tendered to and accepted by the Company. The Trustee shall, as promptly as possible after the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price.
(d) Holders electing to have a Security purchased will be required to surrender the Security, together with all necessary endorsements and other appropriate materials duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders will be entitled to withdraw their election in whole or in part 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 of the Security (which shall be $1,000 or an integral multiple thereof) which was delivered for purchase by the Holder, the aggregate principal amount of such Security (if any) that remains subject to other covenants contained in this Indenturethe original notice of the Excess Proceeds Offer and that has been or will be delivered for purchase by the Company and a statement that such Holder is withdrawing his election to have such Security purchased. If at the expiration of the Excess Proceeds Offer Period the aggregate principal amount of Securities surrendered by Holders thereof exceeds the amount of Excess Collateral ProceedsProceeds Offer Amount, the Trustee Company shall select the Securities to be purchased on a pro rata basis on (with such adjustments as may be deemed appropriate by the basis 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 aggregate principal amount Securities surrendered.
(e) 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.
(f) The Company shall comply, to the extent applicable, with the requirements of tenderedSection 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Securities pursuant to this Section 4.7. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.7, 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
Sources: Indenture (MSX International Business Services Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition of Collateral unless:
unless (1) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Disposition 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 (including as to the value of all non-cash consideration), of the Collateral subject to such Asset Disposition (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraph);
(2) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents and 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral Account; and
(3) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Securities; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such other consideration as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; (2) at least equal to 75% of the fair market value of such other consideration or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such other consideration (which Cash or Cash Equivalents may be withdrawn thereof received by the Company from or such Restricted Subsidiary is in the Collateral Account to be invested in form of cash, cash equivalents, Additional Assets in the manner set forth under this subsection or any combination thereof (a"Permitted Consideration")); provided, further, that prior to such pledge, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) in accordance with this clause (3), other property or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments of the Intercompany Note may be withdrawn by the Company to be invested by the Company in Additional Assets within 360 days from the later of the date of (x) such Asset Disposition, Recovery Event, Asset Swap or prepayments and (y) the receipt of such Net Available Cash, which Additional Assets are thereupon with their acquisition added to the Collateral securing the Notes; provided, however, to the extent that the Credit Facility Collateral Documents restrict Company and its Restricted Subsidiaries shall be permitted to receive Property other than Permitted Consideration, so long as the Company's ability to pledge such Additional Assets as Collateral, the Company shall either pledge other property or assets as Collateral having a aggregate fair market value, as determined in the good faith by of the Board of Directors, of all such Property other than Permitted Consideration received from Asset Dispositions and held by the Company and the Restricted Subsidiaries at least any one time shall not exceed 10% of Adjusted Consolidated Net Tangible Assets; and (3) an amount equal to the fair market value of such Additional Assets or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such Additional Assets; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or deposit, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this paragraph, (ii) in accordance with this paragraph, other property or assets may be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All 100% of the Net Available Cash received 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), to make an Offer to the holders of the Debt Securities (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Debt Securities (and such other Senor Indebtedness) pursuant to and subject to the conditions of Section 4.15(b); provided, however, that in connection with any Recovery Event prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, 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 Section 4.15, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 4.15
(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this Section 4.15(a) exceeds $20.0 million. Pending application of Net Available Cash pursuant to this Section 4.15(a), such Net Available Cash shall be deposited directly into invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the Collateral Account 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 may be withdrawn 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 to be invested in Additional Assets into cash.
(which may include performance b) In the event of a Restoration of the affected Collateral) in accordance with the preceding paragraph within 360 days from the receipt of such Net Available Cash. Any Net Available Cash from Asset Dispositions of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events or prepayments of the Intercompany Note that are not applied or invested as provided in this subsection (a) or in accordance with the Collateral Documents will be deemed to constitute "Excess Collateral Proceeds." On the 361st day after an Asset Disposition, Asset Swap, Recovery Event or prepayment Disposition that requires the purchase of the Intercompany Note Debt Securities (and other Senior Indebtedness) pursuant to this subsection (aSection 4.15(a)(3)(C), if the aggregate amount of Excess Collateral Proceeds exceeds $5.0 million, the Company will be required shall purchase Debt Securities tendered pursuant to make an offer by the Company for the Debt Securities and such other Senior Indebtedness (the "Collateral Disposition Offer") to all holders at a purchase price of Securities to purchase the maximum 100% of their principal amount of Securities to which (or, in the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceedsevent such other Senior Indebtedness was issued with significant original issue discount, at an offer price in cash in an amount equal to 100% of the principal amount of the Securities accreted value thereof), without premium, plus accrued and but unpaid interest to (or, in respect of such other Senior Indebtedness, such lesser price, if any, as may be provided for by the date terms of purchase, such Senior Indebtedness in accordance with the procedures (including prorationing in the event of over subscription) set forth in this Indenture in integral multiples of $1,000. To the extent that the aggregate amount of Securities so validly tendered and not properly withdrawn pursuant to a Collateral Disposition Offer is less than the Excess Collateral Proceeds, the Company may use any remaining Excess Collateral Proceeds for general corporate purposes, free and clear of any Liens created by the Collateral Documents, subject to other covenants contained in this IndentureSection 4.15(c). If the aggregate principal amount purchase price of Debt Securities surrendered by Holders thereof (and any other Senior Indebtedness tendered pursuant to the Offer) exceeds the amount of Excess Collateral ProceedsNet Available Cash allotted to their purchase, the Trustee Company shall select the Debt Securities and other Senior Indebtedness to be purchased on a pro rata basis on but in round denominations, which in the basis case of the aggregate 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 tendereddetermining 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
Sources: 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 of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition of Collateral unless:
(1) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Disposition 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 (including as to the value of all non-cash consideration), of the Collateral subject to such Asset Disposition (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from the sale of the Uhrichsville, Ohio facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit G to the Supply Agreement by and among Commonwealth Aluminum Corporation, IMCO Recycling of Ohio Inc. and IMCO Recycling Inc., dated as of April 1, 1999, or the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of the Issue Date, set forth in Exhibit 5 to the Long Term Agreement between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, shall, in each case, be deemed to be fair market value for purposes of this paragraph);
(2) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents and 100% of the Net Available Cash therefrom is deposited directly by the Company into the Collateral Account; and
(3) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Securities; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such other consideration as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of DirectorsDirectors of the Company or such Subsidiary as the case may be, of the shares and assets subject to such Asset Disposition and at least equal to the fair market value of such other consideration or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such other consideration (which Cash or Cash Equivalents may be withdrawn by the Company from the Collateral Account to be invested in Additional Assets in the manner set forth under this subsection (a)); provided, further, that prior to such pledge, deposit or withdrawal, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) in accordance with this clause (3), other property or assets may be pledged as Collateral having the fair market value required by said clause, (ii) in accordance with this clause (3), cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said clause or (iii) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this clause (3) and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such pledge, deposit or withdrawal have been complied with. Any Net Available Cash deposited into the Collateral Account from any Asset Dispositions of Collateral, Recovery Events (as described in the next paragraph), Asset Swaps involving the transfer of Collateral (as described in Section 3.5(d) below) or prepayments 75% of the Intercompany Note may be withdrawn by the Company to be invested by the Company in Additional Assets within 360 days from the later of the date of (x) such Asset Disposition, Recovery Event, Asset Swap or prepayments and (y) the receipt of such Net Available Cash, which Additional Assets are thereupon with their acquisition added to the Collateral securing the Notes; provided, however, to the extent that the Credit Facility Collateral Documents restrict the Company's ability to pledge such Additional Assets as Collateral, the Company shall either pledge other property or assets as Collateral having a fair market value, as determined in good faith by the Board of Directors, at least equal to the fair market value of such Additional Assets or deposit an amount of cash or Cash Equivalents into the Collateral Account having a value at least equal to the fair market value of such Additional Assets; provided, further, that prior to such investment (and the related withdrawal from the Collateral Account), pledge or deposit, the Company shall have delivered to the Trustee an Officers' Certificate stating, as applicable, that (i) funds to be withdrawn from the Collateral Account are to be invested in Additional Assets in compliance with this paragraph, (ii) in accordance with this paragraph, other property or assets may be pledged as Collateral having the fair market value required by said paragraph or (iii) in accordance with this paragraph, cash or Cash Equivalents are to be deposited into the Collateral Account having the fair market value required by said paragraph and that, in the case of clause (i), (ii) or (iii), all conditions precedent provided for in this Indenture to such investment, pledge or deposit have been complied with. All of the Net Available Cash consideration thereof received by the Company or such Restricted SubsidiarySubsidiary is in the form of cash, as the case may be, from any Recovery Event shall be deposited directly into the Collateral Account and may be withdrawn by the Company cash equivalents or such Restricted Subsidiary to be invested in Additional Assets Marketable Securities; and
(which may include performance of a Restoration of the affected Collateral2) in accordance with the preceding paragraph within 360 days from the receipt of such Net Available Cash. Any Net Available Cash from Asset Dispositions of Collateral, Asset Swaps involving the transfer of Collateral, Recovery Events or prepayments of the Intercompany Note that are not applied or invested as provided in this subsection (a) or in accordance with the Collateral Documents will be deemed to constitute "Excess Collateral Proceeds." On the 361st day after an Asset Disposition, Asset Swap, Recovery Event or prepayment of the Intercompany Note pursuant to this subsection (a), if the aggregate amount of Excess Collateral Proceeds exceeds $5.0 million, the Company will be required to make an offer ("Collateral Disposition Offer") to all holders of Securities to purchase the maximum principal amount of Securities to which the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount Net Available Cash from such Asset Disposition is applied by the Company (or such 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 Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 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 For the purposes of this covenant, the following are deemed to be cash or cash 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 pursuant to clause (a)(2)(C) above, the Company will be required to purchase Securities tendered pursuant to an offer by the Company for the Securities at a purchase price of 101% of their principal amount (without premium) plus accrued and but unpaid interest to the date of purchaseinterest, in accordance with the procedures (including prorating in the event of oversubscription) set forth in the Indenture. The Company shall not be required to make such an offer to purchase Securities pursuant to this Indenture 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 Section 14(e) of the Exchange Act and any other securities laws or regulations in integral multiples connection with the repurchase of $1,000Securities pursuant to this covenant. To the extent that the aggregate amount provisions of Securities so validly tendered and not properly withdrawn pursuant to a Collateral Disposition Offer is less than the Excess Collateral Proceedsany securities laws or regulations conflict with provisions of this covenant, the Company may use any remaining Excess Collateral Proceeds for general corporate purposes, free shall comply with the applicable securities laws and clear of any Liens created regulations and shall not be deemed to have breached its obligations under this clause by the Collateral Documents, subject to other covenants contained in this Indenture. If the aggregate principal amount of Securities surrendered by Holders thereof exceeds the amount of Excess Collateral Proceeds, the Trustee shall select the Securities to be purchased on a pro rata basis on the basis of the aggregate principal amount of tenderedvirtue thereof.
Appears in 1 contract
Sources: Senior Subordinated Indenture (Superior National Insurance Group Inc)