Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved]. (b) The Issuer will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless: (1) the Issuer 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 an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and (2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments. (c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary): (1) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07; (2) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day; (3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or (4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. (d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”). (e) [Reserved]. (f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds. (g) 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 Dollar Equivalent of the amount that is actually received by the Issuer. (h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer. (i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. (j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 5 contracts
Sources: Indenture (Altice USA, Inc.), Indenture (Altice USA, Inc.), Indenture (Altice USA, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 Indebtedness (other than Subordinated Indebtedness or otherwiseDisqualified Stock)) at least equal to the fair market value (such fair market value to be determined determined, in each case, on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the IssuerCompany, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Disposition, together with all other Asset Dispositions since the Issue Date (excluding any consideration on a cumulative basis), (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, Indebtedness (other than IndebtednessSubordinated Indebtedness or Disqualified Stock), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After an amount equal to 100.0% of the receipt of Net Available Cash from an such Asset Disposition, Disposition is applied:
(i) to the Issuer extent the Company or a any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects (or indirectly is required by the terms of any Indebtedness), (at A) to prepay, repay or purchase any Indebtedness of a Non-Guarantor (in each case, other than Indebtedness owed to the option of the Issuer Company or such any Restricted Subsidiary):
) or any Secured Indebtedness (1) or any Refinancing Indebtedness in respect thereof), in each case, other than Subordinated Indebtedness or Disqualified Stock, within 365 450 days from the later of (Aa) the date of such Asset Disposition and (Bb) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (i), the Issuer Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; or (iiB) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; or (iiiC) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;Asset Disposition Offer; and
(2ii) to the extent the Issuer Company or such any Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with equal to the amount of Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 450 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or shall be treated as a permitted application of Net Available Cash from the date of such commitment approved by with the Board of Directors of the Issuer good faith expectation that is executed or approved within an amount equal to Net Available Cash will be applied to satisfy such time will satisfy this requirement, so long as such investment is consummated commitment within 180 days of such 365th daycommitment (an “Acceptable Commitment”) and, in the event of any Acceptable Commitment is later cancelled or terminated for any reason before such amount is applied in connection therewith, the Company or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; or
(4) provided further that if any combination of clauses Second Commitment is later cancelled or terminated for any reason before such amount is applied, then such Net Available Cash shall constitute Excess Proceeds; provided that, (1) through (3) of Section 4.08(c), provided that, pending the final application of the amount of any such Net Available Cash in accordance with clauses clause (1), (2), (3i) or (4ii) of Section 4.08(c)above, the Issuer Company and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest use such Net Available Cash in any manner not prohibited by this Indenture.
; and (d2) Any the Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (ii) above with respect to such Asset Disposition. The amount of any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) the preceding paragraph will be deemed to constitute “Excess Proceeds.” under this Indenture. On the 366th 451st day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (Ax) the date of such an Asset Disposition and or (By) the receipt of such Net Available Cash, or earlier if the Company elects, if the aggregate amount of Excess Proceeds under this Indenture exceeds $100 million50 million aggregate amount in a single transaction or series of related transactions, the Issuer Company will be required within ten (10) Business Days thereof be required to make an offer (“Asset Disposition Offer”) to all holders Holders of the Notes issued under this Indenture and, to the extent the Issuer Company elects (or a Guarantor electsis otherwise required), or the Issuer or a Guarantor is required by the terms to all holders of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, case plus accrued and unpaid interest, if any, interest 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 the case of with respect to the Notes, in minimum denominations of $200,000 2,000 and in integral multiples of $1,000 in excess thereof. No The Company will deliver notice of such purchase Asset Disposition Offer electronically or by first-class mail, with a copy to the Trustee, the Paying Agent and each Holder of Notes at the address of such Holder appearing in part shall reduce the principal amount at maturity security register or otherwise in accordance with the applicable procedures of DTC, describing the transaction or transactions that constitute the Asset Disposition and offering to repurchase the Notes held 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 any holder to below $200,000this Indenture and described in such notice. The Issuer Company may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such all Net Available Cash prior to the time expiration of the relevant 450 days (or such longer period that may be required by this Indenture provided above) or with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”)any unapplied Excess Proceeds.
(e) [Reserved].
(fb) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion“Declined Excess Proceeds”), the Issuer and the Restricted Subsidiaries Company may use any remaining Declined Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent any purpose not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), Company shall allocate the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis by lot on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such ; provided that no Notes or other Pari Passu Indebtedness not denominated will be selected and purchased in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)an unauthorized denomination. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Additionally, and in the case Company may, at its option, make an Asset Disposition Offer using proceeds from any Asset Disposition at any time after the consummation of an Advance such Asset Disposition. Upon consummation or expiration of any Asset Disposition Offer, the amount of any remaining Net Available Cash shall not be deemed Excess Proceeds and the Issuer is offering to apply in Company may use such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) Net Available Cash for any purpose not prohibited by this Indenture. To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than dollarsDollars, the amount thereof payable in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in Dollars that is actually received by the IssuerCompany upon converting such portion into Dollars.
(hc) The 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 Offerby a Foreign Subsidiary (a “Foreign Disposition”) is (x) prohibited or delayed by applicable local law, in so far as it relates (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous organizational or administrative impediments from being repatriated to the NotesUnited States, the portion of such Net Available Cash so affected will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time be required to comply be applied in compliance with this Section 14(e) of 3.5, and such amounts may be retained by the Exchange Act and any other applicable securities laws Foreign Subsidiary so long, but only so long, as the applicable local law documents or regulations in connection with agreements will not permit repatriation to the Asset Disposition Offer United States (the “Asset Disposition Offer Period”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). No , 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 (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 Section 3.5; and
(ii) to the termination extent that the Company has determined in good faith that repatriation of any of or all the Asset Net Available Cash of any Foreign Disposition Offer Period would have an adverse Tax consequence (which for the “Asset Disposition Purchase Date”avoidance of doubt, includes, but is not limited to, any prepayment whereby doing so the Company, any Restricted Subsidiary, or any of their respective affiliates and/or equity owners would incur a tax liability, including a tax dividend, deemed dividend pursuant to Code Section 956 or a withholding tax), the Issuer 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 purchase not, for the principal amount avoidance of Notes anddoubt, to constitute a Default or an Event of Default.
(d) For the extent it electspurposes of Section 3.5(a)(2) hereof, Pari Passu Indebtedness required the following will be deemed to be purchased cash:
(1) the assumption by it the transferee of Indebtedness or other liabilities, contingent or otherwise of the Company or a Restricted Subsidiary (other than Subordinated Indebtedness of the Company or 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;
(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 within 180 days following the closing of such Asset Disposition;
(3) consideration consisting of Indebtedness of the Company (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company or any Restricted Subsidiary; and
(4) any Designated Non-Cash Consideration received by the Company or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section 4.08 3.5 that is at that time outstanding, not to exceed the greater of $132.5 million and 15% of Total Assets (with the “Asset Disposition Offer Amount”) or, if less than fair market value of each item of Designated Non-Cash Consideration being measured at the Asset Disposition Offer Amount has been so validly tendered, all Notes time received and Pari Passu Indebtedness validly tendered without giving effect to subsequent changes in response to the Asset Disposition Offervalue).
(ie) On To the extent that the provisions of any securities laws, rules or before regulations, including Rule 14e-1 under the Asset Disposition Purchase DateExchange Act, conflict with the provisions of this Indenture, the Issuer willCompany will comply with the applicable securities laws, rules and regulations and shall not be deemed to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, have breached its obligations described in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess this Indenture by virtue thereof.
(jf) The Issuer will deliver provisions of this Indenture relative to the Trustee Company’s obligation to make an Officer’s Certificate stating that 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 such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4then outstanding.
Appears in 5 contracts
Sources: Indenture (Carvana Co.), Indenture (Carvana Co.), Indenture (Carvana Co.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the Issuer, ) of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis basis) received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents;
(c3) After the receipt Issuer or any of its Restricted Subsidiaries will apply 100% of the Net Available Cash from an any Asset Disposition, :
(i) to the extent the Issuer or a any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects (or indirectly is required by the terms of any Indebtedness), (at A) to prepay, repay or purchase any Indebtedness of a Non-Guarantor Subsidiary or any Senior-Priority Obligations, including Indebtedness under the option of ABL Facility Agreement or any Refinancing Indebtedness in respect thereof (in each case, other than Indebtedness owed to the Issuer or such any Restricted Subsidiary):
(1) within 365 450 days from the later of (A1) the date of such Asset Disposition and (B2) the receipt of such Net Available Cash (i) to prepayas applicable, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtednessthe “Asset Disposition Proceeds Application Period”); provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; or (iiB) unless included in Section 4.08(c)(1)(B)(i), to prepay, repayrepay or purchase Senior Indebtedness; provided that, purchase or redeem any Pari Passu Indebtedness of to the extent the Issuer prepays, repays or any Guarantorpurchases Senior Indebtedness pursuant to this clause (B), the Issuer 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 a price of no more than or above 100% of the principal amount of such Pari Passu Indebtedness plus accrued and unpaid interest thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to the date of such prepayment, repayment, all Holders to purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases their Notes at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to plus the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notesaccrued but unpaid interest, plus accrued and unpaid interest toif any, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal that would otherwise be prepaid; provided further, that, in addition to the proportion that (x) foregoing, the total aggregate principal amount Net Available Cash from an Asset Disposition of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) Collateral may not be applied to prepay, repay, repay or purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through openSenior-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07Priority Obligations;
(2ii) to the extent the Issuer or such any Restricted Subsidiary electsSubsidiary, as the case may be, elects to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available CashProceeds Application Period; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or shall be treated as a permitted application of Net Available Cash from the date of such commitment approved by with the Board of Directors of the Issuer good faith expectation that is executed or approved within such time Net Available Cash will be applied to satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Available Cash is applied in connection therewith, the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided, further, that if any Second Commitment is later cancelled or terminated for any reason before such Net Available Cash is applied, then such Net Available Cash shall constitute Excess Proceeds; or
(3iii) to make a capital expenditure within 365 days from any combination of the later of foregoing; and
(A4) the date of if such Asset Disposition involves the disposition of Collateral, the Issuer or such Subsidiary has complied with the applicable provisions of this Indenture and (B) the receipt of such Net Available CashCollateral Documents; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3Section 3.5(a)(3)(i) or (4) of Section 4.08(cii), the Issuer and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest use such Net Available Cash in any manner not prohibited by this Indenture.
(db) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c3.5(a) will shall be deemed to constitute “Excess Proceeds.” under this Indenture. On the 366th 451st day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such an Asset Disposition and (B) or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds under this Indenture exceeds $100 million200,000,000, the Issuer will be required shall within ten twenty (1020) Business Days thereof be required to make an offer (“Asset Disposition Offer”) to all holders of the Notes Holders and, to the extent the Issuer or a Guarantor elects, or to the Issuer or a Guarantor is required by the terms holders of any other outstanding Pari Passu Senior-Priority Obligations (and only to the extent the Excess Proceeds are greater than the outstanding Senior-Priority Obligations, other Senior Indebtedness), to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness Senior-Priority Obligations (and, if applicable, Senior Indebtedness) to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu any such Senior-Priority Obligations (and, if applicable, Senior Indebtedness), in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu any such Senior-Priority Obligations (and, if applicable, Senior Indebtedness), as applicable, and in the case of and, with respect to the Notes, in minimum denominations of $200,000 2,000 and in integral multiples of $1,000 in excess thereof. No The Issuer shall deliver notice of such purchase Asset Disposition Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder at the address of such Holder appearing in part shall reduce the principal amount at maturity security register or otherwise in accordance with the applicable procedures of DTC, describing the transaction or transactions that constitute the Asset Disposition and offering to repurchase the Notes held for the specified purchase price on the date specified in the notice, which date shall be no earlier than 15 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by any holder to below $200,000this Indenture and described in such notice. The Issuer may satisfy the foregoing obligations obligation with respect to any such Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture expiration of the Asset Disposition Proceeds Application Period (the “Advance Offer”) with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”)Section 3.5.
(e) [Reserved].
(fc) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness any such Senior-Priority Obligations (and, if applicable, Senior Indebtedness) so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent any purpose not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness Senior-Priority Obligations surrendered by holders or lenderslenders thereof, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness any such Senior-Priority Obligations to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness Senior-Priority Obligations; provided that no Notes or other Senior-Priority Obligations shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)and purchased in an unauthorized denomination. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall will be reset at zerozero (regardless of whether there are any remaining Excess Proceeds upon such completion), and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds. Additionally, upon consummation or expiration of any Advance Offer, any remaining Net Available Cash shall not be deemed Excess Proceeds and the Issuer may use such Net Available Cash for any purpose not otherwise prohibited under this Indenture.
(gd) 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 in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in U.S. dollars that is actually received by the IssuerIssuer upon converting such portion into U.S. dollars.
(he) The 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 Offerby a Foreign Subsidiary (a “Foreign Disposition”) is prohibited or delayed by applicable local law, in so far as it relates or would give rise to a violation of a third-party agreement of the Issuer or any Restricted Subsidiary, from being repatriated to the NotesUnited States, the portion of such Net Available Cash so affected will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time be required to comply be applied in compliance with this Section 14(e) of 3.5, and such amounts may be retained by the Exchange Act and any other applicable securities laws Foreign Subsidiary so long, but only so long, as the applicable local law or regulations in connection with third-party agreement will not permit repatriation to the Asset Disposition Offer United States (the “Asset Disposition Offer Period”Issuer hereby agreeing to use reasonable efforts (as determined in the Issuer’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, to promptly take all actions reasonably required by the applicable local law or third-party agreement to permit such repatriation). No , 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 or third-party agreement, 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) in compliance with this Section 3.5 and (ii) to the termination extent that the Issuer has determined in good faith that repatriation of any of or all the Asset Net Available Cash of any Foreign Disposition Offer Period would have an adverse Tax cost consequence with respect to such Net Available Cash (which for the “Asset Disposition Purchase Date”avoidance of doubt, includes, but is not limited to, any prepayment whereby doing so the Issuer, any Restricted Subsidiary or any of their respective affiliates 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.
(f) For the purposes of Section 3.5(a)(2), the following will be deemed to be cash:
(i) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Issuer will purchase or a Restricted Subsidiary (other than Subordinated Indebtedness of the principal amount Issuer or a Guarantor) and the release of Notes andthe Issuer or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition;
(ii) securities, notes or other obligations received by the Issuer or any Restricted Subsidiary of the Issuer from the transferee that are converted by the Issuer or such Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Disposition;
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent it electsthat the Issuer and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition;
(iv) consideration consisting of Indebtedness of the Issuer (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Issuer or any Restricted Subsidiary; and
(v) any Designated Non-Cash Consideration received by the Issuer or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, Pari Passu Indebtedness required to be purchased by it taken together with all other Designated Non-Cash Consideration received pursuant to this Section 4.08 3.5 that is at that time outstanding, not to exceed the greater of $650,000,000 and 3.0% of Total Assets (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).
(g) Upon the commencement of an Asset Disposition Offer Amount”) orOffer, if less than the Asset Disposition Offer Amount has been so validly tenderedIssuer shall send, or cause to be sent, electronically or by first class mail, a notice to the Trustee and to each Holder at its registered address, in accordance with the applicable procedures of DTC. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes and Pari Passu Indebtedness validly tendered in response pursuant to the Asset Disposition Offer.
(i) On or before . Any Asset Disposition Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Disposition Purchase DateOffer, shall state:
(1) that the Issuer willAsset Disposition Offer is being made pursuant to this Section 3.5 and that, to the extent lawful, accept all Notes tendered and not withdrawn shall be accepted for payment, on a pro rata basis to payment (unless prorated);
(2) the extent necessaryAsset Disposition payment amount, the Asset Disposition Offer Amount of offered price, and the date on which Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness so validly tendered and accepted for payment shall be purchased, which date shall be at least 15 days and not properly withdrawn later than 60 days from the date such notices is mailed (the “Asset Sale Payment Date”);
(3) that any Notes not tendered or accepted for payment will remain outstanding and continue to accrue interest in accordance with the terms thereof;
(4) that, unless the Issuer defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer, or if less than Offer shall cease to accrue interest on and after the Asset Sale Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to any Asset Disposition Offer Amount has been validly shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed (subject to any contrary procedures of DTC with respect to Global Notes), 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 Payment Date;
(6) that Holders will be entitled to withdraw their tendered and not properly withdrawn, all Notes and Pari Passu Indebtedness so validly tendered and their election to require the Issuer to purchase such Notes; provided that the Paying Agent receives, not properly withdrawn andlater than the close of business on the second Business Day prior to the expiration date of the Asset Sale Payment Date, in a telegram, facsimile transmission or letter setting forth the case name of the Holder of the Notes, in minimum denominations the principal amount of $200,000 Notes tendered for purchase, and in integral multiples of $1,000 in excess thereof.a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(j7) The Issuer will deliver to that if the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.aggregate principal
Appears in 4 contracts
Sources: Indenture (Community Health Systems Inc), Indenture (Community Health Systems Inc), Indenture (Community Health Systems Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition of Collateral unless:
(1) the Issuer Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or excluding any consideration by any other Person assuming responsibility for, any liabilities, contingent or otherwiseIndebtedness) at least equal to the fair market value Fair Market Value (such fair market value Fair Market Value to be determined determined, in each case, on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the IssuerCompany, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis), (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such Restricted Subsidiary, as the case may be, is in the form of cash, (x) cash or Cash Equivalents Equivalents; (y) replacement assets of a type that would constitute Collateral or Temporary Cash Investments.(z) any combination of the foregoing; and
(c3) After subject to the receipt Intercreditor Agreements, an amount equal to 100.0% of the Net Available Cash from an such Asset Disposition, Disposition is applied:
(i) to the Issuer extent the Company or a any Restricted Subsidiary, as the case may be, may apply elects (or is required by the terms of any Indebtedness), (i) to the extent the assets or property disposed of in the Asset Disposition constituted Collateral, to prepay, repay or purchase any (x) Senior Lien Obligations or (y) Pari Passu Lien Obligations other than the Notes; provided that to the extent the Company or any Restricted Subsidiary prepays, repays or purchases any Pari Passu Lien Obligations, it shall ratably redeem or repurchase (or offer to repurchase) the Notes, as provided for in Section 5.6, by making an offer to all Holders to purchase their Notes at 100% of the principal amount thereof, plus accrued and unpaid interest, if any (and such offer shall be deemed for purposes of this covenant to be a use of proceeds from an Asset Sale equal to the aggregate amount of Net Available Cash directly offered to the Holders, whether or indirectly not the offer is accepted by any or all Holders) (at a “Notes Pro Rata Redemption”) or (ii) to the option extent the assets or property disposed of in the Issuer Asset Disposition constituted Ally Collateral that is not Collateral, to prepay, repay or such Restricted Subsidiary):
purchase any Floor Plan Facility Obligations, in each case of clauses (1i) and (ii), within 365 450 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (a), the Issuer Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemed; purchased;
(ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) forIntercreditor Agreements, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer Company or such any Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with equal to the amount of Net Available Cash received by the Issuer Company or another Restricted Subsidiary) that would constitute Collateral, within 365 450 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or shall be treated as a permitted application of Net Available Cash from the date of such commitment approved by with the Board of Directors of the Issuer good faith expectation that is executed or approved within an amount equal to Net Available Cash will be applied to satisfy such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th daycommitment (an “Acceptable Commitment”) and, in the event of any Acceptable Commitment is later cancelled or terminated for any reason before such amount is applied in connection therewith, the Company or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided further that if any Second Commitment is later cancelled or terminated for any reason before such amount is applied, then such Net Available Cash shall constitute Excess Collateral Proceeds; provided that (1) pending the final application of the amount of any such Net Available Cash in accordance with clause (i) or (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; and (2) the Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (b) above with respect to such Asset Disposition. The amount of any Net Available Cash from Asset Dispositions of Collateral that is not applied or invested or committed to be applied or invested as provided in the preceding paragraphs will be deemed to constitute “Excess Collateral Proceeds” under this Indenture; provided that, notwithstanding anything in this Section 3.5, (i) all proceeds from ADESA Asset Dispositions of Collateral, (ii) 50% of the proceeds from Asset Dispositions of Collateral that consist of any interests in real estate and (iii) 50% of the proceeds from Asset Dispositions of Collateral that consist of Sale and Leaseback Transactions shall, in each case, be deemed to constitute Excess Collateral Proceeds and shall require a Collateral Disposition Offer to be made within 30 days of such Asset Disposition in accordance with the provisions set forth below, with such Excess Collateral Proceeds being segregated and held in an escrow account pending the Asset Disposition Offer; provided further that the foregoing clauses (ii) and (iii) shall not apply to (x) Asset Dispositions that consist of any interests in real estate or Sale and Leaseback Transactions for which the Company or its Restricted Subsidiaries receive aggregate consideration (together with any other such Asset Dispositions during such fiscal year) of less than $50.0 million in any fiscal year (provided that no ADESA Asset Disposition shall be permitted under this clause (x)) and (y) Asset Dispositions of two real estate sites owned as of the Issue Date near Moreno Valley, CA, and Frederick, MD (provided that the Company or its Restricted Subsidiaries may only allocate up to $90.0 million of aggregate consideration received by the Company or its Restricted Subsidiaries for such Asset Dispositions under this clause (y)). On the 451st day after the later of (x) an Asset Disposition of Collateral or (y) the receipt of such Net Available Cash, or earlier if the Company elects, if the aggregate amount of Excess Collateral Proceeds under this Indenture exceeds $50.0 million aggregate amount in a single transaction or series of related transactions, the Company will within ten (10) Business Days be required to make an offer (“Collateral Disposition Offer”) to all Holders of Notes issued under this Indenture and, to the extent the Company elects (or is otherwise required), to all holders of any other Pari Passu Lien Obligations, to purchase the maximum principal amount of Notes and any such other Indebtedness to which the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, at an offer price in respect of the Notes in an amount equal to 100% of the principal amount of the Notes and Pari Passu Lien Obligations, in each case plus accrued and unpaid interest to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing other Indebtedness, as applicable, and with respect to the Notes, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof (and, if PIK Interest is elected to be paid, in minimum denominations of $2,000 and integral multiples of $1.00 in excess thereof). The Company will deliver notice of such Collateral Disposition Offer electronically or by first-class mail, with a copy to the Trustee, the Paying Agent and each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with the applicable 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. The Company may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making a Collateral Disposition Offer with respect to all Net Available Cash prior to the expiration of the relevant 450 days (or such longer period provided above) or with respect to any unapplied Excess Collateral Proceeds. To the extent that the aggregate amount of Notes and Pari Passu Lien Obligations 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 any purpose not prohibited by this Indenture. If the aggregate principal amount of the Notes surrendered in any Collateral Disposition Offer by Holders in addition to Pari Passu Lien Obligations surrendered by holders or lenders, collectively, exceeds the amount of Excess Collateral Proceeds, the Company shall allocate the Excess Collateral Proceeds among the Notes and Pari Passu Lien Obligations to be purchased by lot on the basis of the aggregate principal amount of tendered Notes and Pari Passu Lien Obligations provided that no Notes or Pari Passu Lien Obligations will be selected and purchased in an unauthorized denomination. Upon completion of any Collateral Disposition Offer, the amount of Excess Collateral Proceeds shall be reset at zero. Additionally, the Company may, at its option, make a Collateral Disposition Offer using proceeds from any Asset Disposition at any time after the consummation of such Asset Disposition. Upon consummation or expiration of any Collateral Disposition Offer, any remaining Net Available Cash shall not be deemed Excess Collateral Proceeds and the Company may use such Net Available Cash for any purpose not prohibited by this Indenture.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition (other than any Asset Disposition of Collateral, which shall be treated in the manner set forth in clause (a)) unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any Indebtedness) at least equal to the Fair Market Value (such Fair Market Value to be determined, in each case, on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap);
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis) (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any Indebtedness), received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied:
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness), (i) to prepay, repay or purchase any Indebtedness of a Non-Guarantor (in each case, other than Indebtedness owed to the Company or any Restricted Subsidiary) or (ii) to prepay, repay or purchase the Notes or any Pari Passu Lien Obligations; provided that, to the extent the Company redeems, repays, prepays or repurchases such Indebtedness pursuant to clause (ii) other than the Notes, the Company shall make a capital expenditure Notes Pro Rata Redemption, within 365 450 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be reduced in an amount equal to the principal amount so prepaid, repaid or purchased; or
(ii) to the extent the Company or any 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 equal to the amount of Net Available Cash received by the Company or another Restricted Subsidiary) within 450 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or shall be treated as a permitted application of Net Available Cash from the date of such commitment approved by with the Board of Directors of the Issuer good faith expectation that is executed or approved within an amount equal to Net Available Cash will be applied to satisfy such time will satisfy this requirement, so long as such investment is consummated Acceptable Commitment within 180 days of such 365th dayAcceptable Commitment and, in the event of any Acceptable Commitment is later cancelled or terminated for any reason before such amount is applied in connection therewith, the Company or such Restricted Subsidiary enters into a Second Commitment within 180 days of such cancellation or termination; or
(4) provided further that if any combination of clauses Second Commitment is later cancelled or terminated for any reason before such amount is applied, then such Net Available Cash shall constitute Excess Proceeds; provided that, (1) through (3) of Section 4.08(c), provided that, pending the final application of the amount of any such Net Available Cash in accordance with clauses clause (1), (2), (3i) or (4ii) of Section 4.08(c)above, the Issuer Company and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest use such Net Available Cash in any manner not prohibited by this Indenture.
; and (d2) Any the Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (ii) above with respect to such Asset Disposition.. The amount of any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) the preceding paragraph will be deemed to constitute “Excess Proceeds.” On the 366th day under this Indenture; provided that, notwithstanding anything in this Section 3.5, (or the 546th dayi) all proceeds from ADESA Asset Dispositions, in the case (ii) 50% of proceeds from Asset Dispositions that consist of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition interests in real estate and (Biii) the receipt 50% of such Net Available Cash, if the aggregate amount proceeds from Asset Dispositions that consist of Excess Proceeds exceeds $100 million, the Issuer will be required within ten Sale and Leaseback Transactions (10in each of clauses (i) Business Days thereof to make an offer through (“Asset Disposition Offer”iii) to all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and excluding any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out Assets Dispositions of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more thanCollateral) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtednessshall, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder be deemed to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.constitute Exces
Appears in 4 contracts
Sources: Indenture (Carvana Co.), Indenture (Carvana Co.), Indenture (Carvana Co.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Holdings will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1i) the Issuer Holdings 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 (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition as such fair market value (including, on the date a legally binding commitment for the avoidance of doubt, if such Asset Disposition is a Permitted was entered into) may be determined (and shall be determined, to the extent such Asset SwapDisposition or any series of related Asset Dispositions involves aggregate consideration in excess of $100.0 million) in good faith by Holdings, whose determination shall be conclusive (including as to the value of all noncash consideration); and;
(2ii) in the case of any such Asset Disposition, Disposition (or series of related Asset Dispositions (except to the extent the Asset Disposition is Dispositions) having a Permitted Asset Swap)fair market value of $100.0 million or more, at least 7575.0% of the consideration from such (excluding, in the case of each Asset Disposition (or such series of related Asset Dispositions (excluding Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than that are not Indebtedness)) for such Asset Disposition, together with all other Asset Dispositions since the Issue Closing Date (except on a cumulative basis) received by Holdings or such Restricted Subsidiary is in the form of cash; and
(iii) to the extent any required by Subsection 8.4(b), an amount equal to 100% (as may be adjusted pursuant to clause (3) of the proviso to Subsection 8.4(b)) of the Net Available Cash from such Asset Disposition was is applied by Holdings (or any Restricted Subsidiary (including the Borrower), as the case may be) as provided therein.
(b) In the event that on or after the Closing Date Holdings or any Restricted Subsidiary shall make an Asset Disposition or a Permitted Recovery Event in respect of Collateral shall occur, subject to Subsection 8.4(a), an amount equal to 100.0% of the Net Available Cash from such Asset Swap) on a cumulative basis received Disposition or Recovery Event shall be applied by the Issuer Holdings (or such any Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.) as follows:
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) first, to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer extent Holdings or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment elects (if any) (except in the case by delivery of any revolving Indebtedness) to be permanently reduced in an amount equal officer’s certificate by a Responsible Officer to the principal amount so prepaid, repaid, purchased or redeemed; (iiAdministrative Agent) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Issuer Holdings or another Restricted Subsidiary) within 365 450 days from after the later of (i) the date of such Asset Disposition or Recovery Event, as the case may be, and (ii) the date of receipt of such Net Available CashCash (such period, the “Reinvestment Period”) or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 450 days to complete, the period of time necessary to complete such project;
(ii) second, (1) if no application of Net Available Cash election is made pursuant to preceding clause (i) with respect to such Asset Disposition or Recovery Event or (2) if such election is made to the extent of the balance of such Net Available Cash or equivalent amount after application in accordance with Subsection 8.4(b)(i), (x) to the extent such Asset Disposition or Recovery Event is an Asset Disposition or Recovery Event of assets that constitute Collateral, to purchase, redeem, repay or prepay, in accordance with Subsection 4.4(e)(i) (subject to Subsection 4.4(h)) or the agreements or instruments governing the relevant Indebtedness described in clause (B) below, as applicable, (A) the Term Loans and (B) to the extent Holdings or any Restricted Subsidiary is required by the terms thereof any Pari Passu Indebtedness on a pro rata basis with the Term Loans and (y) to the extent such Asset Disposition is an Asset Disposition of assets that do not constitute Collateral, to purchase, redeem, repay or prepay, in accordance with Subsection 4.4(e)(i) (subject to Subsection 4.4(h)) or the agreements or instruments governing any relevant Indebtedness permitted under Subsection 8.1, as applicable, (A) the Term Loans and (B) to the extent Holdings or any Restricted Subsidiary is required by the terms thereof, any other Indebtedness (other than Indebtedness subordinated in right of payment to the Term Loan Facilities Obligations) on a pro rata basis with the Term Loans; and
(iii) third, to the extent of the balance of such Net Available Cash or equivalent amount after application in accordance with Subsections 8.4(b)(i) and (ii) above (the amount of such balance, “Declined Excess Proceeds”), to fund (to the extent consistent with any other applicable provision of this Agreement) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of Junior Debt); provided, however, that (1) in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (ii) above, Holdings or such reinvestment Restricted Subsidiary 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; (2) Holdings (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that, such investment shall be made no earlier than the earliest of notice of the relevant Asset Disposition to the Administrative Agent, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within and in accordance with Subsection 8.4(b)(i) above with respect to such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
Asset Disposition; and (3) the foregoing percentage in this clause (iii) shall be reduced to make a capital expenditure within 365 days from 50.0% if the later of (A) the date of such Asset Disposition and (B) the receipt Consolidated Total Leverage Ratio would be equal to or less than 4.00:1.00 after giving pro forma effect to any application of such Net Available Cash; provided, however, that Cash as set forth herein (any such capital expenditure made pursuant Net Available Cash in respect of Asset Dispositions not required to be applied in accordance with this clause (iii) as a definitive binding agreement or a commitment approved by the Board of Directors result of the Issuer that is executed or approved within such time will satisfy application of this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through clause (3) of Section 4.08(cthis proviso shall collectively constitute “Total Leverage Excess Proceeds.”)
(c) Notwithstanding the foregoing provisions of this Subsection 8.4, provided thatHoldings and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Subsection 8.4 except to the extent that (x) the aggregate Net Available Cash from all Asset Dispositions and Recovery Events in respect of Collateral or equivalent amount that is not applied in accordance with this Subsection 8.4 (excluding all Total Leverage Excess Proceeds) exceeds $100.0 million, pending the final application of any in which case Holdings and its Subsidiaries shall apply all such Net Available Cash from such Asset Dispositions and Recovery Events or equivalent amount in accordance with clauses (1), (2), (3Subsection 8.4(b) or (4y) the terms of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce any Pari Passu Indebtedness or otherwise invest such would require Net Available Cash in any manner not prohibited by this Indentureor the equivalent amount from such Recovery Events to be applied to purchase, redeem, repay or prepay such Indebtedness prior to reaching such $100.0 million threshold.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed For the purposes of Subsection 8.4(a)(ii), the following are deemed to be applied or invested as provided in Section 4.08(ccash: (1) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th dayTemporary Cash Investments and Cash Equivalents, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) the assumption of Indebtedness of Holdings (other than Disqualified Stock of Holdings) or (3) any Restricted Subsidiary and the release of Section 4.08(c)) after the later of (A) the date of Holdings or such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to Restricted Subsidiary from all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% liability on payment of the principal amount of such Notes Indebtedness in connection with such Asset Disposition, (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that Holdings and 100% each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of Pari Passu Indebtednesssuch Indebtedness in connection with such Asset Disposition, in each case(4) securities received by Holdings or any Restricted Subsidiary from the transferee that are converted by Holdings or such Restricted Subsidiary into cash within 180 days, plus accrued and unpaid interest(5) consideration consisting of Indebtedness of Holdings or any Restricted Subsidiary, 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(6) Additional Assets, and (7) any Designated Noncash Consideration received by Holdings or any of its Restricted Subsidiaries in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making having an Asset Disposition Offer aggregate Fair Market Value, taken together with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually Designated Noncash Consideration received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 clause (the “Asset Disposition Offer Amount”) or7), if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response not to exceed an aggregate amount at any time outstanding equal to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations greater of $200,000 150.0 million and in integral multiples 2.50% of $1,000 in excess thereof.
Consolidated Total Assets (j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms Fair Market Value of this Section 4each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
Appears in 4 contracts
Sources: Credit Agreement (Univar Inc.), Credit Agreement (Univar Inc.), Credit Agreement (Univar Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Goodyear shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1) the Issuer Goodyear or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the Issuer, Fair Market Value of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap)Disposition; and
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis therefor received by the Issuer Goodyear or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash, Cash Equivalents cash or Temporary Cash InvestmentsAdditional Assets.
(cb) After For the receipt purposes of Net Available Cash from an Asset Dispositionthis covenant, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):following are deemed to be cash:
(1) within 365 days from the later assumption of Indebtedness or other obligations of Goodyear (A) the date other than obligations in respect of such Asset Disposition and (B) the receipt Disqualified Stock of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1Goodyear) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness (other than obligations in respect of Disqualified Stock and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness Preferred Stock of a Restricted Subsidiary that is not a Guarantor Subsidiary Guarantor) and the release of Goodyear or any such Restricted Subsidiary from all liability on such Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price obligations in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07connection with such Asset Disposition;
(2) any Designated Noncash Consideration having an aggregate Fair Market Value that, when taken together with all other Designated Noncash Consideration received pursuant to this clause and then outstanding, does not exceed at the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means time of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment 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 Additional Assets made pursuant to a definitive binding agreement or a commitment approved by value) the Board greater of Directors (1) $200,000,000 and (2) 1.5% of the Issuer that is executed or approved within such time will satisfy this requirement, so long total Consolidated assets of Goodyear as such investment or commitment to invest is consummated within 180 days shown on the most recent balance sheet of such 365th dayGoodyear filed with the SEC;
(3) to make a capital expenditure within 365 days securities, notes or similar obligations received by Goodyear or any Restricted Subsidiary from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, transferee that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved are promptly converted by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement Goodyear or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes Restricted Subsidiary into cash; and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 4 contracts
Sources: Revolving Credit Agreement (Goodyear Tire & Rubber Co /Oh/), Revolving Credit Agreement (Goodyear Tire & Rubber Co /Oh/), Revolving Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1i) the Issuer 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 (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition Disposition, as such fair market value may be determined (includingand shall be determined, for to the avoidance of doubt, if extent such Asset Disposition is a Permitted or any series of related Asset SwapDispositions involves aggregate consideration in excess of $25.0 million) in good faith by the Board of Directors, whose determination shall be conclusive (including as to the value of all non-cash consideration); and;
(2ii) in the case of any such Asset Disposition, Disposition (or series of related Asset Dispositions (except to Dispositions) having a fair market value of $25.0 million or more other than in a sale of the extent the Asset Disposition is a Permitted Asset Swap)Budget Truck Division for fair market value, at least 75% of the consideration from such therefor (excluding, in the case of an Asset Disposition (or such series of related Asset Dispositions (excluding Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than that are not Indebtedness), together with all other Asset Dispositions since ) received by the Issue Date Company or such Restricted Subsidiary is in the form of cash; and
(except iii) an amount equal to 100% of the extent any Net Available Cash from such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received is applied by the Issuer Company (or such any Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.) as follows:
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepayfirst, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that either (x) to the total aggregate principal amount extent the Company elects (or is required by the terms of Notes outstanding bears to (y) the sum any Bank Indebtedness, any senior indebtedness of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase Company or redeem any Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Guarantor Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness that is secured on assets or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness (in each case other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer Company or any a Restricted Subsidiary); (iv) to purchase within 365 days after the Notes through open-market purchases at a price equal to or higher than 100% later of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, the date of purchase (subject to such Asset Disposition and the right date of Holders receipt of record on the relevant record date to receive interest due on the relevant interest payment date) such Net Available Cash, or (v) to redeem the Notes as described under Section 3.07;
(2y) to the extent the Issuer Company or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 365 days to complete, the period of time necessary to complete such project;
(B) second, if the aggregate amount balance of Excess Proceeds such Net Available Cash after application in accordance with clause (A) above exceeds $100 million25.0 million (such balance, the Issuer will be required within ten (10) Business Days thereof “Excess Proceeds”), to the extent of such Excess Proceeds, to make an offer to purchase Notes and (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer Company or a Guarantor such Restricted Subsidiary elects, or the Issuer or a Guarantor is required by the terms thereof) to purchase, redeem or repay any other unsubordinated indebtedness of the Company or a Restricted Subsidiary, pursuant and subject to Section 41l(b) and Section 41l(c) and the agreements governing such other outstanding Pari Passu Indebtedness; and
(C) third, to all holders 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 Subsidiary 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 411, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 411 except to the extent that the aggregate Net Available Cash from all Asset Dispositions or equivalent amount that is not applied in accordance with this Section 411 exceeds $50.0 million. If the aggregate principal amount of Notes or other Indebtedness of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to clause (B) above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to the denominator of which is the Asset Disposition Offer applies that may be purchased out sum of the Excess Proceeds, at an offer price in respect outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. For the purposes of clause (ii) of paragraph (a) above, the following are deemed to be cash: (1) Temporary Cash Investments and Cash Equivalents, (2) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days, and (5) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary.
(b) In the event of an Asset Disposition that requires the purchase of Notes pursuant to Section 41l(a)(iii)(B), the Company will be required to purchase Notes tendered pursuant to an offer by the Company for the Notes (the “Offer”) at a purchase price of 100% of their principal amount plus accrued and unpaid interest to the Purchase Date in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 41l(c). If the aggregate purchase price of the Notes tendered pursuant to the offer is less than the Net Available Cash allotted to the purchase of Notes, the remaining Net Available Cash will be available to the Company for use in accordance with Section 41l(a)(iii)(B) (to repay other Indebtedness of the Company or a Restricted Subsidiary) or Section 41l(a)(iii)(C). The Company shall not be required to make an offer for Notes pursuant to this Section 411 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 41l(a)(iii)(A)) is less than $50.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). No Note will be repurchased in part if less than $2,000 in original principal amount of such Note would be left outstanding.
(c) The Company shall, not later than 45 days after the Company becomes obligated to make an offer pursuant to this Section 411, mail a notice to each Holder with a copy to the Trustee 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 a portion of such Holder’s Notes at a purchase price in cash equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each casethereof, plus accrued and unpaid interest, if any, to, but not including, 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 411, that a Holder must follow in accordance with order to have its Notes purchased; and (5) the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case amount of the Notesoffer. If, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce upon the principal amount at maturity expiration of the Notes held by any holder to below $200,000. The Issuer may satisfy period for which the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (oroffer remains open, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, the Holder exceeds the amount of Excess Proceeds (or, in the case of an Advance Offeroffer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) Company shall be allocated among select the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any (with such Indebtedness not denominated in dollars, such Indebtedness shall adjustments as may be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected deemed appropriate by the Issuer Company so that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and only Notes in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in 2,000 or integral multiples of $1,000 in excess thereofthereof shall be purchased).
(jd) The Issuer will deliver to To the Trustee an Officer’s Certificate stating extent that such Notes the provisions of any securities laws or portions thereof were accepted for payment by the Issuer in accordance regulations conflict with the terms provisions of this Section 4411, the Company may comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 411 by virtue thereof.
Appears in 4 contracts
Sources: Indenture (Avis Budget Group, Inc.), Indenture (Avis Budget Group, Inc.), Indenture (Avis Budget Group, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the IssuerCompany, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.; and
(c3) After an amount equal to 100% of the receipt of Net Available Cash from an such Asset DispositionDisposition is applied by the Company or such Restricted Subsidiary, as the Issuer case may be:
(A) to the extent the Company or a any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects (or indirectly (at is required by the option terms of the Issuer or such any Indebtedness of a Restricted Subsidiary):
), (1i) to prepay, repay or purchase any Indebtedness of a non-Guarantor Restricted Subsidiary (in each case, other than Indebtedness owed to the Company or any Restricted Subsidiary), any Secured Indebtedness or Indebtedness under the Revolving Credit Agreement (or any Refinancing Indebtedness in respect thereof) within 365 395 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (a), the Issuer Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtednessthe Revolving Credit Agreement) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; or (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, repay or purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase repayment or redemptionpurchase; provided that the Issuer or such Guarantor, as applicable, Company shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer Company makes (at such time or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes subsequently in compliance with this Section 4.09) an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of accordance with the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, provisions set forth below for an Asset Disposition Offer for an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;or
(2B) to the extent the Issuer Company or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 395 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer Company that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th 395th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3Section 4.09(a)(3)(A) or (4) of Section 4.08(c4.09(a)(3)(B), the Issuer Company and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(db) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c4.09(a) will be deemed to constitute “Excess Proceeds.” under this Indenture. On the 366th 396th day (after an Asset Disposition, or at such earlier date that the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available CashIssuers elect, if the aggregate amount of Excess Proceeds under this Indenture exceeds $100 €50.0 million, the Issuer Issuers will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes issued under this Indenture and, to the extent the Issuer or a Guarantor electsIssuers elect, or the Issuer or a Guarantor is required by the terms to all holders of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum aggregate principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and 100% of the principal amount of such Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the such Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(fc) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Issuer and the Restricted Subsidiaries Issuers may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, subject to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the aggregate principal amount of any such Indebtedness not denominated in dollarseuro, including the Notes, such Indebtedness shall be calculated by converting any such aggregate principal amounts into their Dollar Euro Equivalent determined as of a date selected by the Issuer Issuers that is within the Asset Disposition Offer Period (as defined belowherein). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(gd) 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 in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in U.S. dollars that is actually received by the IssuerIssuers upon converting such portion into U.S. dollars.
(he) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer Issuers will purchase the aggregate principal amount of Notes and, to the extent it electsthey elect, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 4.09 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(if) On or before the Asset Disposition Purchase Date, the Issuer Issuers will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, and in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) . The Issuer Company will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer Company in accordance with the terms of this Section 4.09. 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 Notes an amount equal to the purchase price of the Notes so validly tendered and not properly withdrawn by such Holder, and accepted by the Company for purchase, and the Company will promptly issue a new Note (or amend the Global Note), and the Trustee, upon delivery of an Officer’s Certificate from the Company, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount with a minimum denomination of $200,000 and in integral multiples of $1,000 in excess thereof. Any Note not so accepted will be promptly mailed or delivered (or transferred by book entry) by the Company to the Holder thereof.
(g) For the purposes of Section 4.09(a)(2), the following will be deemed to be cash:
(1) the assumption by the transferee of Indebtedness of the Company or Indebtedness of a Restricted Subsidiary (other than Subordinated Indebtedness of the Company or a Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition;
(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) 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 4.09 that is at that time outstanding, not to exceed the greater of €100.0 million and 1% of Total Assets (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).
(h) The Issuers will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations (or rules of any exchange on which the Notes are then listed) in connection with the repurchase of Notes pursuant to this Indenture. To the extent that the provisions of any securities laws or regulations (or exchange rules) conflict with provisions of this Section 4.09, the Company will comply with the applicable securities laws and regulations (or exchange rules) and will not be deemed to have breached its obligations under this Indenture by virtue of any conflict.
Appears in 4 contracts
Sources: Senior Indenture (NXP Semiconductors N.V.), Senior Indenture (NXP Semiconductors N.V.), Senior Indenture (NXP Semiconductors N.V.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Combination Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Priority Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of each series of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes of each series at least equal to the proportion that (x) the total aggregate principal amount of Notes of such series outstanding bears to (y) the sum of the total aggregate principal amount of Notes of such series outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-open- market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the each series of Notes at a purchase price in cash equal to at least 100% of the principal amount of the such Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the each series of Notes as described under Section 3.07;
(2) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” ”. On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the each series of Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes of a series in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved]Any Net Available Cash payable in respect of the Notes pursuant to this Section 4.08 will be allocated between the 2021 May Notes, the 2021 September Notes, the 2025 Notes and the 2028 Notes in proportion to the respective aggregate principal amounts of such 2021 May Notes, the 2021 September Notes, the 2025 Notes and the 2028 Notes validly tendered and not withdrawn.
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 3 contracts
Sources: Indenture (Altice USA, Inc.), Indenture (Altice USA, Inc.), Indenture (Altice USA, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer or such any of its Restricted Subsidiary, as the case may be, Subsidiaries receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) such Asset Disposition at least equal to the fair market value Fair Market Value (such fair market value Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors ) of the Issuer, of the shares and Capital Stock or other assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap)Disposition; and
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the aggregate consideration received by the Issuer or any of its Restricted Subsidiaries from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with and all other Asset Dispositions since the Issue Date (except to Date, on a cumulative basis, is in the extent form of cash or Cash Equivalents or Additional Assets, or any combination thereof. The Net Available Cash from such Asset Disposition was a Permitted may be applied, within 365 days from the later of the date of such Asset Swap) on a cumulative basis received Disposition or the receipt of such Net Available Cash, by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.:
(ca) After to prepay, repay, redeem or purchase Pari Passu Indebtedness of the receipt Issuer (including the Notes) or a Subsidiary Guarantor or any Indebtedness (other than Disqualified Stock) of a Restricted Subsidiary that is not a Subsidiary Guarantor (in each case, excluding Indebtedness owed to the Issuer or an Affiliate of the Issuer); or
(b) to invest in Additional Assets; provided that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Issuer and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. Any Net Available Cash from an Asset Disposition, Dispositions that is not applied or invested as provided in the Issuer or a Restricted Subsidiary, as preceding paragraph will be deemed to constitute “Excess Proceeds.” Not later than the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days 366th day from the later of (A) the date of such Asset Disposition and (B) or the receipt of such Net Available Cash (i) to prepayCash, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase if the aggregate amount of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i)Excess Proceeds exceeds $50.0 million, the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment make an offer (if any) (except in the case of any revolving Indebtedness“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Pari Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the Issuer to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies that may be permanently reduced purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, at a price of no more than 100% of the principal amount (or, in the event such Pari Passu Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof) of the Notes and Pari Passu Notes plus accrued and unpaid interest, if any (or in respect of such Pari Passu Indebtedness plus accrued and unpaid interest to Indebtedness, such lesser price, if any, as may be provided for by the date terms of such prepaymentIndebtedness), repayment, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not includingexcluding, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture Section 3.5 or the agreements governing the Pari Passu IndebtednessNotes, as applicable, and in the each case of the Notes, in minimum denominations principal amount of $200,000 2,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture2,000. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders thereof and other Pari Passu Indebtedness Notes surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) Trustee shall be allocated among select the Notes and the representative of such other Pari Passu Indebtedness Notes will select such other Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu IndebtednessNotes. For To the purposes of calculating extent that the aggregate principal amount of any such Indebtedness Notes and Pari Passu Notes so validly tendered and not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the properly withdrawn pursuant to an Asset Disposition Offer Period (as defined below)is less than the Excess Proceeds, the Issuer and its Restricted Subsidiaries may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. Upon completion of any such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) . The Asset Disposition Offer, in so far as it relates to the Notes, Offer will remain open for a period of not less than 20 Business Days following its commencement or such shorter commencement, except to the extent that a longer period of time is required to comply with Section 14(e) of the Exchange Act and any other by applicable securities laws or regulations in connection with the Asset Disposition Offer law (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, and Pari Passu Indebtedness Notes required to be purchased by it pursuant to this Section 4.08 3.5 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tenderedtendered and not properly withdrawn, all Notes and Pari Passu Indebtedness Notes validly tendered and not properly withdrawn in response to the Asset Disposition Offer.
(i) . 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, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no further interest will be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness Notes or portions of Notes and Pari Passu Indebtedness Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Indebtedness Notes so validly tendered and not properly withdrawn andwithdrawn, in the each case of the Notes, in minimum denominations principal amount of $200,000 2,000 and in integral multiples of $1,000 in excess thereof.
(j) of $2,000. The Issuer will deliver to the Trustee an Officer’s Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 3.5 and, in addition, the Issuer will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. The Issuer or the paying agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Disposition Offer Period) mail or deliver to each tendering Holder of Notes or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Notes or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Issuer for purchase, and the Issuer will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Issuer, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess of $2,000. In addition, the Issuer will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Note not so accepted will be promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date. The Issuer will comply, to the extent applicable, with the requirements of Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to an Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 3.5, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of its compliance with such securities laws or regulations. For the purposes of clause (2) of the first paragraph of this Section 3.5, the following will be deemed to be cash:
(1) the assumption by the transferee of Indebtedness (other than Guarantor Subordinated Obligations or Disqualified Stock) of the Issuer or Indebtedness of a Restricted Subsidiary (other than Subordinated Obligations or Disqualified Stock of the Issuer and Guarantor Subordinated Obligations or Disqualified Stock of any Restricted Subsidiary that is a Subsidiary Guarantor) and the release of the Issuer or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition (in which case the Issuer will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with clause (a) of the second paragraph of this Section 3.5);
(2) with respect to any Asset Disposition of oil and gas properties by the Issuer or any of its Restricted Subsidiaries in which the Issuer or such Restricted Subsidiary still retains an interest, any agreement by the transferee (or any Affiliate thereof) to pay all or a portion of the costs and expenses related to the exploration, development, completion or production of such properties and activities related thereto;
(3) securities, notes or other obligations received by the Issuer or any Restricted Subsidiary from the transferee that are converted by the Issuer or such Restricted Subsidiary into cash within 180 days after receipt thereof; and
(4) any Designated Non-Cash Consideration received by the Issuer or such Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (4), not to exceed an amount equal to 7.5% of the Issuer’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-Cash Consideration), with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value. Notwithstanding the foregoing, the 75% limitation referred to in clause (2) of the first paragraph of this Section 3.5 shall be deemed satisfied with respect to any Asset Disposition in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with the foregoing provision on an after-tax basis, is equal to or greater than what the after-tax proceeds would have been had such Asset Disposition complied with the aforementioned 75% limitation. The requirement of clause (b) of the second paragraph of this Section 3.5 shall be deemed to be satisfied if an agreement (including a lease, whether a finance lease or an operating lease) committing to make the acquisitions or expenditures referred to therein is entered into by the Issuer or its Restricted Subsidiary within the specified time period and such Net Available Cash is subsequently applied in accordance with such agreement within six months following such agreement.
Appears in 3 contracts
Sources: Indenture (ANTERO RESOURCES Corp), Indenture (ANTERO RESOURCES Corp), Indenture (ANTERO RESOURCES Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1) the Issuer Borrower or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the Issuer, Fair Market Value of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap)Disposition; and
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis therefor received by the Issuer Borrower or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash, Cash Equivalents cash or Temporary Cash InvestmentsAdditional Assets.
(cb) After For the receipt purposes of Net Available Cash from an Asset Dispositionthis covenant, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):following are deemed to be cash:
(1) within 365 days from the later assumption of Indebtedness or other obligations of the Borrower (A) other than obligations in respect of Disqualified Stock of the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1Borrower) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness (other than obligations in respect of Disqualified Stock and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness Preferred Stock of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness Subsidiary Guarantor) and the release of the Issuer Borrower or a Guarantor such Restricted Subsidiary from all liability on such Indebtedness or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price obligations in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07connection with such Asset Disposition;
(2) any Designated Noncash Consideration having an aggregate Fair Market Value that, when taken together with all other Designated Noncash Consideration received pursuant to this clause and then outstanding, does not exceed at the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means time of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment 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 Additional Assets made pursuant to a definitive binding agreement or a commitment approved by value) the Board greater of Directors (1) $200,000,000 and (2) 1.5% of the Issuer that is executed or approved within such time will satisfy this requirement, so long total Consolidated assets of the Borrower as such investment or commitment to invest is consummated within 180 days shown on the most recent balance sheet of such 365th daythe Borrower filed with the SEC;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; providedsecurities, however, that any such capital expenditure made pursuant to a definitive binding agreement notes or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing similar obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to Borrower or any Restricted Subsidiary from the Notes, will remain open for a period of not less than 20 Business Days following its commencement transferee that are promptly converted by the Borrower or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes Restricted Subsidiary into cash; and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 3 contracts
Sources: First Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/), First Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/), First Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Combination Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of each series of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes of each series at least equal to the proportion that (x) the total aggregate principal amount of Notes of such series outstanding bears to (y) the sum of the total aggregate principal amount of Notes of such series outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the each series of Notes at a purchase price in cash equal to at least 100% of the principal amount of the such Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the each series of Notes as described under Section 3.07;
(2) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the each series of Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes of a series in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with payable in respect of the Notes pursuant to such Net Available Cash prior this covenant will be allocated between the 2023 Notes and the 2026 Notes in proportion to the time period that may be required by this Indenture with respect to all or a part respective aggregate principal amounts of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”)such 2023 Notes and 2026 Notes validly tendered and not withdrawn.
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 3 contracts
Sources: Indenture (Altice USA, Inc.), Indenture (Altice USA, Inc.), Indenture (Altice USA, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1i) the Issuer 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 (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition Disposition, as such fair market value may be determined (includingand shall be determined, for to the avoidance of doubt, if extent such Asset Disposition is a Permitted or any series of related Asset SwapDispositions involves aggregate consideration in excess of $25.0 million) in good faith by the Board, whose determination shall be conclusive (including as to the value of all non-cash consideration); and;
(2ii) in the case of any such Asset Disposition, Disposition (or series of related Asset Dispositions (except to Dispositions) having a fair market value of $25.0 million or more other than in a sale of the extent the Asset Disposition is a Permitted Asset Swap)Budget Truck Division for fair market value, at least 75% of the consideration from such therefor (excluding, in the case of an Asset Disposition (or such series of related Asset Dispositions (excluding Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than that are not Indebtedness), together with all other Asset Dispositions since ) received by the Issue Date Company or such Restricted Subsidiary is in the form of cash; and
(except iii) an amount equal to 100% of the extent any Net Available Cash from such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received is applied by the Issuer Company (or such any Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.) as follows:
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepayfirst, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that either (x) to the total aggregate principal amount extent the Company elects (or is required by the terms of Notes outstanding bears to (y) the sum any Bank Indebtedness, any senior indebtedness of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase Company or redeem any Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Guarantor Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness that is secured on assets or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness (in each case other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer Company or any a Restricted Subsidiary); (iv) to purchase within 365 days after the Notes through open-market purchases at a price equal to or higher than 100% later of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, the date of purchase (subject to such Asset Disposition and the right date of Holders receipt of record on the relevant record date to receive interest due on the relevant interest payment date) such Net Available Cash, or (v) to redeem the Notes as described under Section 3.07;
(2y) to the extent the Issuer Company or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, or, if such investment in Additional Assets is a project authorized by the Board that will take longer than such 365 days to complete, the period of time necessary to complete such project;
(B) second, if the aggregate amount balance of Excess Proceeds such Net Available Cash after application in accordance with clause (A) above exceeds $100 million25.0 million (such balance, the Issuer will be required within ten (10) Business Days thereof “Excess Proceeds”), to the extent of such Excess Proceeds, to make an offer to purchase Notes and (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer Company or a Guarantor such Restricted Subsidiary elects, or the Issuer or a Guarantor is required by the terms thereof) to purchase, redeem or repay any other unsubordinated indebtedness of the Company or a Restricted Subsidiary, pursuant and subject to Section 41l(b) and Section 41l(c) and the agreements governing such other outstanding Pari Passu Indebtedness; and
(C) third, to all holders 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 Subsidiary 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 411, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 411 except to the extent that the aggregate Net Available Cash from all Asset Dispositions or equivalent amount that is not applied in accordance with this Section 411 exceeds $50.0 million. If the aggregate principal amount of Notes or other Indebtedness of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to clause (B) above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to the denominator of which is the Asset Disposition Offer applies that may be purchased out sum of the Excess Proceeds, at an offer price in respect outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. For the purposes of clause (ii) of paragraph (a) above, the following are deemed to be cash: (1) Temporary Cash Investments and Cash Equivalents, (2) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days, and (5) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary.
(b) In the event of an Asset Disposition that requires the purchase of Notes pursuant to Section 41l(a)(iii)(B), the Company will be required to purchase Notes tendered pursuant to an offer by the Company for the Notes (the “Offer”) at a purchase price of 100% of their principal amount plus accrued and unpaid interest to the Purchase Date in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 41l(c). If the aggregate purchase price of the Notes tendered pursuant to the offer is less than the Net Available Cash allotted to the purchase of Notes, the remaining Net Available Cash will be available to the Company for use in accordance with Section 41l(a)(iii)(B) (to repay other Indebtedness of the Company or a Restricted Subsidiary) or Section 41l(a)(iii)(C). The Company shall not be required to make an offer for Notes pursuant to this Section 411 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 41l(a)(iii)(A)) is less than $50.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). No Note will be repurchased in part if less than $2,000 in original principal amount of such Note would be left outstanding.
(c) The Company shall, not later than 45 days after the Company becomes obligated to make an offer pursuant to this Section 411, mail a notice to each Holder with a copy to the Trustee 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 a portion of such Holder’s Notes at a purchase price in cash equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each casethereof, plus accrued and unpaid interest, if any, to, but not including, 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 411, that a Holder must follow in accordance with order to have its Notes purchased; and (5) the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case amount of the Notesoffer. If, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce upon the principal amount at maturity expiration of the Notes held by any holder to below $200,000. The Issuer may satisfy period for which the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (oroffer remains open, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, the Holder exceeds the amount of Excess Proceeds (or, in the case of an Advance Offeroffer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) Company shall be allocated among select the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any (with such Indebtedness not denominated in dollars, such Indebtedness shall adjustments as may be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected deemed appropriate by the Issuer Company so that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and only Notes in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in 2,000 or integral multiples of $1,000 in excess thereofthereof shall be purchased).
(jd) The Issuer will deliver to To the Trustee an Officer’s Certificate stating extent that such Notes the provisions of any securities laws or portions thereof were accepted for payment by the Issuer in accordance regulations conflict with the terms provisions of this Section 4411, the Company may comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 411 by virtue thereof.
Appears in 3 contracts
Sources: Indenture (Avis Budget Group, Inc.), Indenture (Avis Budget Group, Inc.), Indenture (Avis Budget Group, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Borrower will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition following the Effective Date unless:
(1i) the Issuer Borrower 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 Fair Market Value (such fair market value Fair Market Value to be determined on determined, at the option of the Borrower, as of the date a letter of intent for such Asset Disposition is entered into, as of the date of such Asset Disposition or as of the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors ) of the Issuer, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap)Disposition; and
(2ii) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents Equivalents.
(b) The Borrower shall determine the Fair Market Value of any consideration from such Asset Disposition that is not cash or Temporary Cash InvestmentsEquivalents.
(c) After Subject to the receipt terms of the Intercreditor Agreements, any Net Available Cash received by the Borrower or any Restricted Subsidiary from an any Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (Disposition shall be applied at the option Borrower’s election for one or more of the Issuer or such Restricted Subsidiary):following purposes:
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving IndebtednessAsset Disposition by a Non-Guarantor Subsidiary or consisting of Capital Stock of a Non-Guarantor Subsidiary, to repay Indebtedness of a Non-Guarantor Subsidiary;
(ii) to the extent of any Net Available Cash from any Asset Disposition of assets of any Pulitzer Entity, to repay Indebtedness (or interest or premium thereon) under the Second Lien Loan Documents;
(iii) to reinvest in or acquire assets (including Capital Stock or other securities acquired in connection with the acquisition of Capital Stock or property of another Person that is or becomes a Restricted Subsidiary of the Borrower or that would constitute a Permitted Investment under clause (2) of the definition thereof) used or useful in a Related Business; provided that to the extent the assets subject to such Asset Disposition were ▇▇▇ Collateral or Pulitzer Collateral, such newly acquired assets (other than Excluded Property) shall also be permanently reduced ▇▇▇ Collateral or Pulitzer Collateral, respectively, in each case as required by the terms and provisions of the Security Documents;
(iv) to repay, prepay, purchase, redeem or otherwise acquire Priority Payment Lien Obligations (and, if the Priority Payment Lien Obligations so repaid, prepaid, purchased, redeemed or acquired, is under a revolving credit facility, effect a permanent reduction in the availability thereunder in an amount equal to the aggregate principal amount of Priority Payment Lien Obligations under such revolving credit facility so repaid, prepaid, repaidpurchased, purchased redeemed or redeemedacquired) and Pari Passu Lien Indebtedness (including, without limitation, the Term Loans); provided that if the Borrower or any Restricted Subsidiary shall so reduce Pari Passu Lien Indebtedness other than Term Loans (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Lien Indebtedness other than the Term Loans being hereinafter referred to as “Other Pari Passu Lien Indebtedness”), the Borrower will use or, pursuant to the procedures set forth in Section 5.02(e), offer to use a portion of such Net Available Cash to prepay the outstanding principal amount of the Issuer or any Guarantor, at a price of no more than 100% Term Loans by an amount (the “Loan Reduction Amount”) equal to the product obtained by multiplying (1) the aggregate principal amount of the Term Loans outstanding immediately prior to the time (the “Reduction Time”) of such reduction of Other Pari Passu Lien Indebtedness by (2) a fraction (x) the numerator of which is the aggregate principal amount of such reduction in Other Pari Passu Lien Indebtedness plus accrued and unpaid interest (y) the denominator of which is the aggregate principal amount of all Other Pari Passu Lien Indebtedness outstanding immediately prior to such Reduction Time (it being understood that, upon the date completion of any such prepaymentoffer to prepay Term Loans in compliance with this subclause (iv), repaymentthen, purchase even if the aggregate principal amount Term Loans prepaid pursuant to such offer is less than the aggregate principal amount of Term Loans that the Borrower shall have offered to prepay, the Borrower shall be under no further obligation to prepay or redemptionoffer to prepay any Term Loans pursuant to this subclause (iv); provided that any Net Available Cash not applied pursuant to this subclause (iv) shall constitute Excess Proceeds, which shall be applied in accordance with the Issuer following provisions of this Section 10.05); provided that, so long as (1) the Second Lien Loan Documents include provisions requiring that proceeds of Asset Dispositions of assets of Pulitzer Entities shall be used to repay the Pulitzer Debt, invested in or used to acquire assets (including Capital Stock or other securities acquired in connection with the acquisition of Capital Stock or property of another Person that is or becomes a Pulitzer Entity or that constitutes an Investment by a Pulitzer Entity) used or useful in a Related Business or pay or prepay Indebtedness outstanding under the Second Lien Loan Documents or interest or premium thereon (it being understood that the Second Lien Term Loans (or any Indebtedness Incurred to Refinance the Second Lien Term Loans) will not be deemed to include provisions to the foregoing effect solely by virtue of Liens on ▇▇▇ Collateral, Pulitzer Collateral or other collateral, Guarantees, maturity or structural subordination) and (2) the Borrower elects to apply any Net Available Cash pursuant to subclause (ii) or (iv), such Net Available Cash shall be applied pursuant to subclause (ii), to the extent of any such Net Available Cash from any Asset Disposition of assets of any Pulitzer Entity, and subclause (iv), to the extent of any such Net Available Cash from any Asset Disposition of assets of the Borrower or any of its Restricted Subsidiaries (other than the Pulitzer Entities).
(d) [Reserved];
(e) For the purposes of this Section 10.05, the following are deemed to be cash: (x) the assumption of Indebtedness or other liabilities of the Borrower (other than Disqualified Stock or Subordinated Obligations) or Indebtedness or other liabilities of any Restricted Subsidiary (other than Guarantor Subordinated Obligations or Disqualified Stock of any Subsidiary Guarantor) and the release of the Borrower or such GuarantorRestricted Subsidiary from all liability on such Indebtedness or liabilities in connection with such Asset Disposition, as applicable(y) securities, shall prepaynotes or similar obligations received by the Borrower or any Restricted Subsidiary from the transferee that are converted within 180 days following the closing of such Asset Disposition by the Borrower or such Restricted Subsidiary into cash, redeemand (z) any Designated Non-cash Consideration received by the Borrower or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate Fair Market Value (determined in Good Faith by the Borrower), repay or repurchase Pari Passu Indebtedness that is Public Debt taken together with all other Designated Non-cash Consideration received pursuant to this clause (iiz) only if that is at that time outstanding, not to exceed the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100greater of $20.0 million and 2.5% of Consolidated Total Assets at the principal amount thereof, or makes an offer to the Holders time of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being determined in Additional Assets made pursuant to a definitive binding agreement or a commitment approved Good Faith by the Board of Directors of Borrower at the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment received and without giving effect to invest is consummated within 180 days of such 365th day;subsequent changes in value).
(3f) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending Pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c)Cash, the Issuer and the Borrower or its Restricted Subsidiaries may temporarily use such Net Available Cash to reduce revolving Indebtedness under any Debt Facility (without any requirement to permanently reduce the availability or commitment thereunder) or otherwise invest such Net Available Cash in Cash Equivalents or otherwise use such monies for any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th dayother purpose, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, subject to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants provisions contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess ProceedsAgreement.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 3 contracts
Sources: Amendment Agreement (Lee Enterprises, Inc), Amendment Agreement (Lee Enterprises, Inc), First Lien Credit Agreement (Lee Enterprises, Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the Issuer, ) of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis basis) received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents;
(c3) After the receipt Issuer or any of its Restricted Subsidiaries will apply an amount equal to 100% of the Net Available Cash from an any Asset Disposition, :
(i) to the extent the Issuer or a any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects (or indirectly is required by the terms of any Indebtedness), (at A) to prepay, repay or purchase any Indebtedness of a Non-Guarantor Subsidiary or any Senior-Priority Obligations, including Indebtedness under the option of ABL Facility Agreement or any Refinancing Indebtedness in respect thereof (in each case, other than Indebtedness owed to the Issuer or such any Restricted Subsidiary):
(1) within 365 450 days from the later of (A1) the date of such Asset Disposition and (B2) the receipt of such Net Available Cash (i) to prepayas applicable, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtednessthe “Asset Disposition Proceeds Application Period”); provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; or (iiB) unless included in Section 4.08(c)(1)(B)(i), to prepay, repayrepay or purchase Senior Indebtedness; provided that, purchase or redeem any Pari Passu Indebtedness of to the extent the Issuer prepays, repays or any Guarantorpurchases Senior Indebtedness pursuant to this clause (B), the Issuer 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 a price of no more than or above 100% of the principal amount of such Pari Passu Indebtedness plus accrued and unpaid interest thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to the date of such prepayment, repayment, all Holders to purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases their Notes at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to plus the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notesaccrued but unpaid interest, plus accrued and unpaid interest toif any, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal that would otherwise be prepaid; provided further, that, in addition to the proportion that (x) foregoing, the total aggregate principal amount Net Available Cash from an Asset Disposition of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) Collateral may not be applied to prepay, repay, repay or purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through openSenior-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07Priority Obligations;
(2ii) to the extent the Issuer or such any Restricted Subsidiary electsSubsidiary, as the case may be, elects to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available CashProceeds Application Period; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or shall be treated as a permitted application of Net Available Cash from the date of such commitment approved by with the Board of Directors of the Issuer good faith expectation that is executed or approved within such time Net Available Cash will be applied to satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
commitment (3an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Available Cash is applied in connection therewith, the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided, further, that if any Second Commitment is later cancelled or terminated for any reason before such Net Available Cash is applied, then such Net Available Cash shall constitute Excess Proceeds; provided, further that the Issuer or any Restricted Subsidiary may elect to make a capital expenditure within 365 days from deem investments that occur prior to the later receipt of the Net Available Cash to have been made in accordance with this Section 3.5(a)(3)(ii) so long as such investments shall have been made no earlier than the earliest of (Ax) the date notice of such Asset Disposition and to the Trustee, (By) the receipt execution of a definitive agreement relating to such Asset Disposition or (z) 180 days prior to the consummation of such Net Available CashAsset Disposition; or
(iii) any combination of the foregoing; and
(4) if such Asset Disposition involves the disposition of Collateral, the Issuer or such Subsidiary has complied with the applicable provisions of this Indenture and the Collateral Documents; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3Section 3.5(a)(3)(i) or (4) of Section 4.08(cii), the Issuer and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest use such Net Available Cash in any manner not prohibited by this Indenture.
(db) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c3.5(a) will shall be deemed to constitute “Excess Proceeds.” under this Indenture. On the 366th 451st day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such an Asset Disposition and (B) or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds under this Indenture exceeds $100 million200,000,000, the Issuer will be required shall within ten twenty (1020) Business Days thereof be required to make an offer (“Asset Disposition Offer”) to all holders of the Notes Holders and, to the extent the Issuer or a Guarantor elects, or to the Issuer or a Guarantor is required by the terms holders of any other outstanding Pari Passu Senior-Priority Obligations (and only to the extent the Excess Proceeds are greater than the outstanding Senior-Priority Obligations, other Senior Indebtedness), to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes Notes, at an offer price equal to 100% of the principal amount of the Notes, and any such Pari Passu Indebtedness Senior-Priority Obligations (and, if applicable, Senior Indebtedness) to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu any such Senior-Priority Obligations (and, if applicable, Senior Indebtedness), as applicable, and in the case of and, with respect to the Notes, in minimum denominations of $200,000 2,000 and in integral multiples of $1,000 in excess thereof. No The Issuer shall deliver notice of such purchase Asset Disposition Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder at the address of such Holder appearing in part shall reduce the principal amount at maturity security register or otherwise in accordance with the applicable procedures of DTC, describing the transaction or transactions that constitute the Asset Disposition and offering to repurchase the Notes held for the specified purchase price on the date specified in the notice, which date shall be no earlier than 10 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by any holder to below $200,000this Indenture and described in such notice. The Issuer may satisfy the foregoing obligations obligation with respect to any such Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture expiration of the Asset Disposition Proceeds Application Period (the “Advance Offer”) with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”)Section 3.5.
(e) [Reserved].
(fc) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness any such Senior-Priority Obligations (and, if applicable, Senior Indebtedness) so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent any purpose not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness Senior-Priority Obligations surrendered by holders or lenderslenders thereof, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness any such Senior-Priority Obligations to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness Senior-Priority Obligations; provided that no Notes or other Senior-Priority Obligations shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)and purchased in an unauthorized denomination. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall will be reset at zerozero (regardless of whether there are any remaining Excess Proceeds upon such completion), and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds. Additionally, upon consummation or expiration of any Advance Offer, any remaining Net Available Cash shall not be deemed Excess Proceeds and the Issuer may use such Net Available Cash for any purpose not otherwise prohibited under this Indenture.
(gd) 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 in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in U.S. dollars that is actually received by the IssuerIssuer upon converting such portion into U.S. dollars.
(he) The 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 Offerby a Foreign Subsidiary (a “Foreign Disposition”) is prohibited or delayed by applicable local law, in so far as it relates or would give rise to a violation of a third-party agreement of the Issuer or any Restricted Subsidiary, from being repatriated to the NotesUnited States, the portion of such Net Available Cash so affected will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time be required to comply be applied in compliance with this Section 14(e) of 3.5, and such amounts may be retained by the Exchange Act and any other applicable securities laws Foreign Subsidiary so long, but only so long, as the applicable local law or regulations in connection with third-party agreement will not permit repatriation to the Asset Disposition Offer United States (the “Asset Disposition Offer Period”Issuer hereby agreeing to use reasonable efforts (as determined in the Issuer’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, to promptly take all actions reasonably required by the applicable local law or third-party agreement to permit such repatriation). No , 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 or third-party agreement, 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) in compliance with this Section 3.5 and (ii) to the termination extent that the Issuer has determined in good faith that repatriation of any of or all the Asset Net Available Cash of any Foreign Disposition Offer Period would have an adverse Tax cost consequence with respect to such Net Available Cash (which for the “Asset Disposition Purchase Date”avoidance of doubt, includes, but is not limited to, any prepayment whereby doing so the Issuer, any Restricted Subsidiary or any of their respective affiliates 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.
(f) For the purposes of Section 3.5(a)(2), the following will be deemed to be cash:
(i) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Issuer will purchase or a Restricted Subsidiary (other than Subordinated Indebtedness of the principal amount Issuer or a Guarantor) and the release of Notes andthe Issuer or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition;
(ii) securities, notes or other obligations received by the Issuer or any Restricted Subsidiary of the Issuer from the transferee that are converted by the Issuer or such Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Disposition;
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent it electsthat the Issuer and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition;
(iv) consideration consisting of Indebtedness of the Issuer (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Issuer or any Restricted Subsidiary; and
(v) any Designated Non-Cash Consideration received by the Issuer or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, Pari Passu Indebtedness required to be purchased by it taken together with all other Designated Non-Cash Consideration received pursuant to this Section 4.08 3.5 that is at that time outstanding, not to exceed the greater of $650,000,000 and 4.0% of Total Assets (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).
(g) Upon the commencement of an Asset Disposition Offer Amount”) orOffer, if less than the Asset Disposition Offer Amount has been so validly tenderedIssuer shall send, or cause to be sent, electronically or by first class mail, a notice to the Trustee and to each Holder at its registered address, in accordance with the applicable procedures of DTC. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes and Pari Passu Indebtedness validly tendered in response pursuant to the Asset Disposition Offer.
(i) On or before . Any Asset Disposition Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Disposition Purchase DateOffer, shall state:
(1) that the Issuer willAsset Disposition Offer is being made pursuant to this Section 3.5 and that, to the extent lawful, accept all Notes tendered and not withdrawn shall be accepted for payment, on a pro rata basis to payment (unless prorated);
(2) the extent necessaryAsset Disposition payment amount, the Asset Disposition Offer Amount of offered price, and the date on which Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness so validly tendered and accepted for payment shall be purchased, which date shall be at least 10 days and not properly withdrawn later than 60 days from the date such notices is mailed (the “Asset Sale Payment Date”);
(3) that any Notes not tendered or accepted for payment will remain outstanding and continue to accrue interest in accordance with the terms thereof;
(4) that, unless the Issuer defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer, or if less than Offer shall cease to accrue interest on and after the Asset Sale Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to any Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed (subject to any contrary procedures of DTC with respect to Global Notes), to the Paying Agent at the address specified in minimum denominations the notice prior to the close of $200,000 and in integral multiples of $1,000 in excess thereof.business on the third Business Day preceding the Asset Sale Payment Date;
(j6) The Issuer that Holders will deliver be entitled to the Trustee an Officer’s Certificate stating that such withdraw their tendered Notes or portions thereof were accepted for payment by and their election to require the Issuer in accordance with to purchase such Notes; provided that the terms of this Section 4.Paying Ag
Appears in 3 contracts
Sources: Indenture (Community Health Systems Inc), Indenture (Community Health Systems Inc), Indenture (Community Health Systems Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1i) the Issuer 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 (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition Disposition, as such fair market value may be determined (includingand shall be determined, for to the avoidance of doubt, if extent such Asset Disposition is a Permitted or any series of related Asset SwapDispositions involves aggregate consideration in excess of $15.0 million) in good faith by the Board of Directors, whose determination shall be conclusive (including as to the value of all non-cash consideration); and,
(2ii) in the case of any such Asset Disposition, Disposition (or series of related Asset Dispositions (except to the extent the Asset Disposition is Dispositions) having a Permitted Asset Swap)fair market value of $15.0 million or more, at least 75% of the consideration from such therefor (excluding, in the case of an Asset Disposition (or such series of related Asset Dispositions (excluding Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than that are not Indebtedness)) received by the Company or such Restricted Subsidiary is in the form of cash, together with all other Asset Dispositions since and
(iii) an amount equal to 100% of the Issue Date (except to the extent any Net Available Cash from such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received is applied by the Issuer Company (or such any Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.) as follows:
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and first, either (B) the receipt of such Net Available Cash (ix) to prepay, repay, purchase the extent the Company elects (or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), is required by the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case terms of any revolving Bank Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Senior Indebtedness of the Issuer Company or any Guarantor, 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, purchase Subsidiary Guarantor or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness that is secured on assets (in each case other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer Company or any a Restricted Subsidiary); (iv) to purchase within 365 days after the Notes through open-market purchases at a price equal to or higher than 100% later of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, the date of purchase (subject to such Asset Disposition and the right date of Holders receipt of record on the relevant record date to receive interest due on the relevant interest payment date) such Net Available Cash, or (v) to redeem the Notes as described under Section 3.07;
(2y) to the extent the Issuer Company or such Restricted Subsidiary elects, to invest reinvest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, or, if such reinvestment in Additional Assets is a project authorized by the aggregate amount Board of Excess Proceeds exceeds $100 millionDirectors that will take longer than such 365 days to complete, the Issuer will be required within ten period of time necessary to complete such project;
(10B) Business Days thereof 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 (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer Company or a Guarantor such Restricted Subsidiary elects, or the Issuer or a Guarantor is required by the terms thereof) to purchase, redeem or repay any other Senior Subordinated Indebtedness of the Company or a Restricted Subsidiary, pursuant and subject to Section 411(b) and Section 411(c) and the agreements governing such other outstanding Pari Passu Indebtedness; and
(C) third, to all holders 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 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 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 of this Section 411, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 411 except to the extent that the aggregate Net Available Cash from all Asset Dispositions that is not applied in accordance with this Section 411 exceeds $20.0 million. If the aggregate principal amount of Notes or other Indebtedness of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to clause (B) above exceeds the Excess Proceeds, the Excess Proceeds shall be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to the denominator of which is the Asset Disposition Offer applies that may be purchased out sum of the Excess Proceeds, at an offer price in respect outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. For the purposes of clause (ii) of paragraph (a) above, the following are deemed to be cash: (1) Temporary Cash Investments and Cash Equivalents, (2) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days, (5) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary and (6) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause, not to exceed an aggregate amount at any time outstanding equal to 3% of Consolidated Tangible Assets (andwith 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).
(b) In the event of an Asset Disposition that requires the purchase of Notes pursuant to Section 411(a)(iii)(B), the Company shall be required to purchase Notes tendered pursuant to an offer by the Company for the Notes (the “Offer”) at a purchase price of 100% of their principal amount plus accrued and unpaid interest to the purchase date in accordance with the procedures (including prorating in the case event of any Pari Passu Indebtedness, an offer oversubscription) set forth in Section 411(c). If the aggregate purchase price of no more thanthe Notes tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of Notes, the remaining Net Available Cash shall be available to the Company for use in accordance with Section 411(a)(iii)(B) (to repay other Indebtedness of the Company or a Restricted Subsidiary) or Section 411(a)(iii)(C). The Company shall not be required to make an Offer for Notes pursuant to this Section 411 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 411(a)(iii)(A)) is less than $20.0 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 shall, not later than 45 days after the Company becomes obligated to make an Offer pursuant to this Section 411, mail a notice to each Holder with a copy to the Trustee 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 a portion of such Holder’s Notes at a purchase price in cash equal to 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each casethereof, plus accrued and unpaid interest, if any, to, but not including, 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 411, that a Holder must follow in accordance with order to have its Notes purchased; and (5) the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case amount of the NotesOffer. If, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce upon the principal amount at maturity expiration of the Notes held by any holder to below $200,000. The Issuer may satisfy period for which the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (orremains open, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) Company shall be allocated among select the Notes and Pari Passu Indebtedness 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 the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness $1,000 or integral multiples thereof shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined belowpurchased). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(gd) To The Company shall comply, to the extent that any portion applicable, with the requirements 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount repurchase of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to 411. To the extent lawful, accept for payment, on a pro rata basis to that the extent necessary, the Asset Disposition Offer Amount provisions of Notes and Pari Passu Indebtedness any securities laws or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance regulations conflict with the terms provisions of this Section 4411, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 411 by virtue thereof.
Appears in 3 contracts
Sources: Indenture (VWR Funding, Inc.), Indenture (VWR International, Inc.), Indenture (VWR International, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer or such Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) 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 an Officer or the Board of Directors at the time of entering into an agreement to effect such Asset Disposition (including as to the Issuervalue of all non-cash consideration), of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); andDisposition;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Additional Assets or a combination thereof; and
(c3) After an amount equal to 100% of the receipt of Net Available Cash from an such Asset Disposition, Disposition is applied by the Issuer or a such Restricted Subsidiary, as the case may be:
(a) first, to the extent the Issuer or any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects (or indirectly is required by the terms of any Indebtedness), to prepay, repay or purchase Indebtedness (at the option other than Disqualified Stock or Subordinated Obligations) of the Issuer or such Restricted Subsidiary):
of a Guarantor (1in each case other than Indebtedness owed to the Issuer or an Affiliate of the Issuer) within 365 360 days from the later of (A) the date of such Asset Disposition and (B) or the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (a), the Issuer or such Restricted Subsidiary will shall retire such Indebtedness and will shall cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaidrepaid or purchased; and provided further, purchased or redeemed; that if the assets disposed of do not constitute CET Collateral (ii) unless included as defined in Section 4.08(c)(1)(B)(ithe 2010 Notes Indenture), the Net Available Cash in respect thereof may only be used to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase the Notes or Pari Passu Indebtedness, and other Pari Passu Indebtedness may be prepaid, repurchased or repaid only to the extent that Net Available Cash also is Public Debt pursuant applied to this clause (ii) only if the Issuer ratably prepay, repay or such Guarantor purchases through open-market purchases at a price equal repurchase Notes prior to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtednesssubstantially concurrently therewith; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;and
(2b) second, to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 360 days from the later of (i) the date of such Asset Disposition and (ii) or the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses clause (1), (2), (3a) or clause (4b) of Section 4.08(c)above, the Issuer and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest use such Net Available Cash in any manner not prohibited by this Indenture.
(da) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c4.9(a) will be deemed to constitute “Excess Proceeds.” On the 366th 361st day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such an Asset Disposition and (B) the receipt of such Net Available CashDisposition, if the aggregate amount of Excess Proceeds exceeds $100 €15 million, the Issuer will shall be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, make an offer to all holders of such other outstanding Pari Passu Indebtedness outstanding with similar provisions requiring the Issuer to make an offer to purchase or repay such Pari Passu Indebtedness with the proceeds from any Asset Disposition, to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies applies, respectively, that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes cash in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes, pari passu Notes and 100% of the principal amount of other Pari Passu Indebtedness, in each case, Indebtedness plus accrued and unpaid interestinterest and Additional Amounts, if any, to, but not including, to the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, in denominations of $100 and any integral multiple of $1 in excess thereof in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(fb) To the extent that the aggregate amount of Notes and other Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (orProceeds, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any such remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall no longer constitute Excess Proceeds and may be used for general corporate purposes, to the extent any purpose not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders holders thereof and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (orProceeds, the Trustee shall select the Notes to be purchased on a pro rata basis or by lot, in accordance with DTC procedures, on the case aggregate principal amount of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the tendered Notes and the Issuer shall select the Pari Passu Indebtedness to be purchased on a pro rata basis basis, on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(gc) To the extent that any portion of Net Available Cash payable in respect Notice of the Notes is denominated Asset Disposition Offer will be given in a currency other than dollars, the amount thereof payable in respect of the Notes shall not exceed the net Dollar Equivalent of the amount that is actually received by the Issuer.
(h) accordance with this Indenture. The Asset Disposition Offer, in so far as it relates to the Notes, Offer will remain open for a period of not less than 20 Business Days following its commencement or such shorter commencement, except to the extent that a longer period of time is required to comply with Section 14(e) of the Exchange Act and any other by applicable securities laws or regulations in connection with the Asset Disposition Offer law (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will shall purchase the principal amount of Notes and, to the extent it elects, and Pari Passu Indebtedness Indebtedness, required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) 4.9 or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(id) 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 Note is registered at the close of business on such record date, and no additional interest will be payable to holders of the Notes who tender Notes pursuant to the Asset Disposition Offer.
(e) On or before the Asset Disposition Purchase Date, the Issuer willshall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness Indebtedness, respectively, or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn andwithdrawn, in the case of the Notes, Notes in minimum denominations of $200,000 100 and in any integral multiples multiple of $1,000 1 in excess thereof.
(j) . The Issuer will shall deliver to the Trustee an Officer’s Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer Issuer, in accordance with the terms of this Section 44.9 and, in addition, the Issuer shall deliver all certificates and Notes required, if any, by the agreements governing the Pari Passu Indebtedness. The Issuer or, upon written request, the Paying Agent, as the case may be, shall 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 Notes an amount equal to the purchase price of the Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Issuer for purchase, and the Issuer shall promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Issuer shall authenticate and mail or deliver such new Note to such holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount of $100 and any integral multiple of $1 in excess thereof. Any Note not so accepted shall be promptly mailed or delivered by the Issuer to the holder thereof. The Issuer shall publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date.
(f) For the purposes of this Section 4.9, 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 Issuer or Indebtedness (other than Disqualified Stock) of any Guarantor and the release of the Issuer or such Guarantor from all liability on such Indebtedness in connection with such Asset Disposition (in which case the Issuer shall, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with clause (a) above); provided that to the extent that the assets that are the subject of an Asset Disposition are Collateral, only the assumption and release of Indebtedness that is Pari Passu Indebtedness shall be qualify as “cash” under this clause (1); and
(2) securities, Notes or other obligations received by the Issuer or any Restricted Subsidiary from the transferee that are converted within 90 days by the Issuer or such Restricted Subsidiary into cash.
(g) To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.9, the Issuer’s compliance with the applicable securities laws and regulations shall not be deemed to be in breach of the Issuer’s and the Issuer’s obligations under this Indenture and the terms of any Pari Passu Indebtedness, as applicable by virtue of any conflict.
Appears in 3 contracts
Sources: Indenture (Central European Media Enterprises LTD), Indenture (Central European Media Enterprises N.V.), Indenture (CME Media Enterprises B.V.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(bA) The Issuer will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition unless:
(1i) the Issuer or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all noncash consideration), as determined in good faith by members of the Issuer’s senior management, of the shares and assets subject to such Asset Disposition;
(ii) at least seventy five percent (75%) of the consideration thereof received by the Issuer 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 or related property, plant and equipment, or loans secured by real estate, up to seventy five percent (75%) of the consideration may consist of Indebtedness of the purchaser of such real estate properties or related property, plant and equipment, or loans secured by real estate, so long as such Indebtedness is secured by a first or second priority Lien on the real estate property or properties or related property, plant and equipment, or loans secured by real estate, sold;
(iii) an amount equal to one hundred percent (100%) of the Net Available Cash from such Asset Disposition is applied by the Issuer (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 an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and):
(2a) in any such Asset Dispositionfirst, or series of related Asset Dispositions (except to the extent the Asset Disposition Issuer elects (or is a Permitted Asset Swap), at least 75% required by the terms of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer prepay, repay, redeem or such Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option purchase secured Indebtedness of the Issuer or such any Restricted Subsidiary):
Subsidiary or Indebtedness (other than Disqualified Stock) of any other Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Issuer or an Affiliate of the Issuer) within one (1) within 365 days year from the later of (A) the date of such Asset Disposition and (B) 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 (ia), to the extent the Issuer elects, to make a capital expenditure or to acquire Replacement Assets within one (1) 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, to make an offer to the Holders of the Notes (and to holders of other Senior Indebtedness of the Issuer designated by the Issuer) to prepay, repay, purchase or redeem any Notes (and such other Senior Indebtedness incurred under Section 4.04(b)(1of the Issuer) or any Guarantor Indebtednesspursuant to and subject to the conditions contained in the Indenture; provided, however, that, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (a) or (c) above (excluding temporary reductions of revolving credit indebtedness made pursuant to the last sentence of Section 4.08(c)(1)(B)(i4.05(B)), the Issuer or such Restricted Subsidiary will shall permanently retire such Indebtedness and will shall cause the related loan commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaidrepaid or purchased; provided further, purchased however, the Issuer will be deemed to have complied with clause (b) above if and to the extent that, within three hundred and sixty five (365) days after the later of the Asset Disposition or redeemed; the receipt of Net Available Cash, the Issuer or any of its Restricted Subsidiaries has entered into and not abandoned or rejected a binding agreement to make a capital expenditure or to acquire Replacement Assets, and that such capital expenditure or acquisition is thereafter completed within one hundred and eighty (180) days after the end of such three hundred and sixty five (365) day period.
(B) The Net Available Cash of an Asset Disposition not applied pursuant to Section 4.05(A)(iii)(a) or Section 4.05(A)(iii)(b) above constitute “Excess Proceeds.” Excess Proceeds of less than fifty million dollars ($50,000,000) will be carried forward and accumulated. When accumulated Excess Proceeds equal or exceed such amount, the Issuer must, within thirty (30) days, make an offer to purchase the Notes, in accordance with Section 4.05(A)(iii)(c). Pending application of Net Available Cash pursuant to this Section 4.05, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness.
(C) In the event the Issuer make an offer to purchase the Notes pursuant to Section 4.05(A)(iii)(c), (i) if Notes in an aggregate principal amount less than or equal to the applicable Excess Proceeds are duly tendered pursuant to such offer to purchase, then the Issuer will purchase all such tendered Notes, and (ii) unless included if Notes in an aggregate principal amount in excess of the applicable Excess Proceeds are duly tendered pursuant to such offer to purchase, then the Issuer will purchase tendered Notes having an aggregate principal amount equal to the applicable Excess Proceeds on a pro rata basis, with adjustments so that only Notes in a minimum denomination of $2,000 in principal amount or in a principal amount denomination of any integral multiple of $1,000 in excess thereof will be purchased.
(D) For the purposes of this Section 4.08(c)(1)(B)(i)4.05, the following are deemed to prepay, repay, purchase be cash or redeem any Pari Passu cash equivalents:
(i) the assumption of Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness and the release of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer or such Restricted Subsidiary elects, to invest from all liability on such Indebtedness in or purchase or commit to invest in or purchase Additional Assets connection with such Asset Disposition; and
(including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash ii) securities received by the Issuer or another any Restricted Subsidiary) within 365 days Subsidiary from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, transferee that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved are converted by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated Restricted Subsidiary into cash within 180 days of such 365th day;receipt.
(3E) to make a capital expenditure within 365 days from In the later event of (A) the date of such an Asset Disposition that requires the purchase of Notes (and (Bother Senior Indebtedness of the Issuer) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c4.05(A)(iii)(c), the Issuer will purchase Notes tendered pursuant to an offer by the Issuer for the Notes (and such other Senior Indebtedness of the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
Issuer) at a purchase price of one hundred percent (d100%) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day of their principal amount (or the 546th dayor, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors event such other Senior Indebtedness of the Issuer pursuant to clause was issued with significant original issue discount, one hundred percent (2) or (3100%) of Section 4.08(cthe accreted value thereof)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each casewithout premium, plus accrued and but unpaid interest, if any, to(or, but not includingin respect of such other Senior Indebtedness of the Issuer, such lesser price, if any, as may be provided for by the date terms of purchase, such Senior Indebtedness of the Issuer) in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount purchase price of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, securities tendered exceeds the amount of Excess Proceeds (or, in the case of an Advance OfferNet Available Cash allotted to their purchase, the Advance Portion), Issuer will select the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness securities to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated but in dollarsround denominations, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and which in the case of the Notes will be in a minimum denomination of $2,000 in principal amount or in a principal amount denomination of any integral multiple of $1,000 in excess thereof. The Issuer shall not be required to make such an Advance Offer, offer to purchase Notes (and other Senior Indebtedness of the Issuer) pursuant to this Section 4.05 if the Excess Proceeds are less than five million dollars ($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 the Issuer is offering to apply in such Advance Offer shall be excluded in from any subsequent calculations of Excess ProceedsAsset Disposition).
(gF) To The Issuer will comply, to the extent that any portion applicable, with the requirements 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (purchase of Notes pursuant to this Section 4.05. To the “Asset Disposition Offer Period”). No later than five (5) Business Days after extent that the termination provisions of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”)any securities laws or regulations conflict with provisions of this Section 4.05, the Issuer will purchase comply with the principal amount of Notes and, applicable securities laws and regulations and will not be deemed to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to have breached its obligations under this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer4.05 by virtue of its compliance with such securities laws or regulations.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 3 contracts
Sources: Supplemental Indenture (Kennedy-Wilson Holdings, Inc.), Supplemental Indenture (Kennedy-Wilson Holdings, Inc.), Supplemental Indenture (Kennedy-Wilson Holdings, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company and any Permitted Affiliate Parent will not, and will not permit any of its the Restricted Subsidiaries to, without the consent of the Required Lenders, make any Asset Disposition unless:
(1) the Issuer Company, such Permitted Affiliate Parent 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), ) (including as determined in good faith by an Officer or to the Board value of Directors of the Issuer, all non-cash consideration) of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); andDisposition;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent unless the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company, such Permitted Affiliate Parent or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) is reinvested or applied to prepay the receipt of such Net Available Cash (i) to prepay, repay, purchase Loans or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Other Applicable Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount in accordance with Section 2.05(b)(i) of Notes at least equal this Agreement.
(b) For the purposes of this Section 4.10, the following will be deemed to the proportion that be cash:
(x1) the total aggregate principal amount assumption by the transferee of Notes outstanding bears to Indebtedness (yother than Subordinated Obligations) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase any Loan Party or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor Loan Party and the release of such Loan Party or any such Restricted Subsidiary from all liability on such Indebtedness that is secured on assets in connection with such Asset Disposition (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on which case the relevant record date Borrower will, without further action, be deemed to receive interest due on the relevant interest payment datehave applied such deemed cash to Indebtedness in accordance with Section 2.05(b)(i) or (v) to redeem the Notes as described under Section 3.07of this Agreement);
(2) to securities, notes or other obligations received by the extent Company, a Permitted Affiliate Parent or any Restricted Subsidiary from the Issuer transferee that are convertible by the Company, such Permitted Affiliate Parent or such Restricted Subsidiary elects, to invest in into cash or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by Equivalents within 180 days following the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date closing of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th dayDisposition;
(3) to make Indebtedness of any Restricted Subsidiary that is no longer a capital expenditure within 365 days from the later of (A) the date Restricted Subsidiary as a result of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes andDisposition, to the extent that the Issuer or a Guarantor electsCompany, or the Issuer or a Guarantor is required by the terms any Permitted Affiliate Parent and each other Restricted Subsidiary are released from any guarantee of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% payment of the principal amount of such Notes and 100Indebtedness in connection with such Asset Disposition;
(4) consideration consisting of Indebtedness of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary;
(5) any Designated Non-Cash Consideration received by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value not to exceed 25.0% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, consideration from such Asset Disposition (excluding any consideration received from such Asset Disposition in accordance with Section 4.10(b)(1) to Section 4.10(b)(4)) (with the procedures set forth 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 this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and value);
(6) in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect addition to any Net Available Designated Non-Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn Consideration received pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance PortionSection 4.10(b)(5), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Designated Non-Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually Consideration received by the Issuer.
(h) The Company, a Permitted Affiliate Parent or any Restricted Subsidiary in such Asset Disposition OfferDispositions having an aggregate fair market value, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply taken together with Section 14(e) of the Exchange Act and any all other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it Designated Non-Cash Consideration received pursuant to this Section 4.08 4.10(b)(6) that is at that time outstanding, not to exceed the greater of $250.0 million and 5.0% of Total Assets (with the “Asset Disposition Offer Amount”) or, if less than fair market value of each item of Designated Non-Cash Consideration being measured at the Asset Disposition Offer Amount has been so validly tendered, all Notes time received and Pari Passu Indebtedness validly tendered without giving effect to subsequent changes in response to the Asset Disposition Offer.value);
(i7) On consideration consisting of securities or before obligations issued, insured or unconditionally guaranteed by a government (or any agency or instrumentality thereof) of a country where the Asset Disposition Purchase DateCompany, a Permitted Affiliate Parent or any Restricted Subsidiary is organized or located; and
(8) any Capital Stock or assets of the Issuer will, kind referred to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case definition of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof“Additional Assets”.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 3 contracts
Sources: Additional Facility Joinder Agreement (Liberty Latin America Ltd.), Amendment Agreement (Liberty Latin America Ltd.), Credit Agreement (Liberty Latin America Ltd.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1i) the Issuer 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 (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition Disposition, as such fair market value may be determined (includingand shall be determined, for to the avoidance of doubt, if extent such Asset Disposition is a Permitted or any series of related Asset SwapDispositions involves aggregate consideration in excess of $25.0 million) in good faith by the Board of Directors, whose determination shall be conclusive (including as to the value of all noncash consideration); and,
(2ii) in the case of any such Asset Disposition, Disposition (or series of related Asset Dispositions (except to the extent the Asset Disposition is Dispositions) having a Permitted Asset Swap)fair market value of $15.0 million or more, at least 75% of the consideration from such therefor (excluding, in the case of an Asset Disposition (or such series of related Asset Dispositions (excluding Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than that are not Indebtedness)) received by the Company or such Restricted Subsidiary is in the form of cash, together with all other Asset Dispositions since and
(iii) an amount equal to 100% of the Issue Date (except to the extent any Net Available Cash from such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received is applied by the Issuer Company (or such any Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.) as follows:
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and first, either (B) the receipt of such Net Available Cash (ix) to prepay, repay, purchase the extent the Company elects (or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), is required by the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case terms of any revolving Bank Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Senior Indebtedness of the Issuer Company or any Guarantor, 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, purchase Subsidiary Guarantor or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness that is secured on assets or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness (in each case other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer Company or any a Restricted Subsidiary); (iv) to purchase within 365 days after the Notes through open-market purchases at a price equal to or higher than 100% later of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, the date of purchase (subject to such Asset Disposition and the right date of Holders receipt of record on the relevant record date to receive interest due on the relevant interest payment date) such Net Available Cash, or (v) to redeem the Notes as described under Section 3.07;
(2y) to the extent the Issuer Company or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, or, if such investment in Additional Assets is a project authorized by the aggregate amount Board of Excess Proceeds exceeds $100 millionDirectors that will take longer than such 365 days to complete, the Issuer will be required within ten period of time necessary to complete such project;
(10B) Business Days thereof 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 (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer Company or a Guarantor such Restricted Subsidiary elects, or the Issuer or a Guarantor is required by the terms thereof) to purchase, redeem or repay any other Senior Indebtedness of the Company or a Restricted Subsidiary, pursuant and subject to Section 6.9(b) and Section 6.9(c) and the agreements governing such other outstanding Pari Passu Indebtedness; and
(C) third, to all holders 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 Subsidiary 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 6.9, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 6.9 except to the extent that the aggregate Net Available Cash from all Asset Dispositions or equivalent amount that is not applied in accordance with this Section 6.9 exceeds $30.0 million. If the aggregate principal amount of Notes or other Indebtedness of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to clause (B) above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to the denominator of which is the Asset Disposition Offer applies that may be purchased out sum of the Excess Proceeds, at an offer price in respect outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. For the purposes of clause (ii) of paragraph (a) above, the following are deemed to be cash: (1) Temporary Cash Investments and Cash Equivalents, (2) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days, (5) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary, (6) Additional Assets and (7) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause, not to exceed an aggregate amount at any time outstanding equal to the greater of $50.0 million and 5.75% of Consolidated Tangible Assets (andwith the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(b) In the event of an Asset Disposition that requires the purchase of Notes pursuant to Section 6.9(a)(iii)(B), the Company will be required to purchase Notes tendered pursuant to an offer by the Company for the Notes (the “Offer”) at a purchase price of 100% of their principal amount plus accrued and unpaid interest to the Purchase Date in accordance with the procedures (including prorating in the case event of any Pari Passu Indebtedness, an offer oversubscription) set forth in Section 6.9(c). If the aggregate purchase price of no more thanthe Notes tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of Notes, the remaining Net Available Cash will be available to the Company for use in accordance with Section 6.9(a)(iii)(B) (to repay other Indebtedness of the Company or a Restricted Subsidiary) or Section 6.9(a)(iii)(C). The Company shall not be required to make an Offer for Notes pursuant to this Section 6.9 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 6.9(a)(iii)(A)) is less than $30.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). No Note will be repurchased in part if less than $2,000 in original principal amount of such Note would be left outstanding.
(c) The Company shall, not later than 45 days after the Company becomes obligated to make an Offer pursuant to this Section 6.9, mail a notice to each Holder with a copy to the Trustee 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 a portion of such Holder’s Notes at a purchase price in cash equal to 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each casethereof, plus accrued and unpaid interest, if any, to, but not including, to the date of purchasepurchase (subject to Section 3.9); (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 6.9, that a Holder must follow in accordance with order to have its Notes purchased; and (5) the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case amount of the NotesOffer. If, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce upon the principal amount at maturity expiration of the Notes held by any holder to below $200,000. The Issuer may satisfy period for which the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (orremains open, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, Holder exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) Company shall be allocated among select the Notes and Pari Passu Indebtedness 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 the aggregate principal amount $2,000 or integral multiples of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated $1,000 in dollars, such Indebtedness excess thereof shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined belowpurchased). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(gd) To The Company will comply, to the extent that any portion applicable, with the requirements 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount repurchase of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to 6.9. To the extent lawful, accept for payment, on a pro rata basis to that the extent necessary, the Asset Disposition Offer Amount provisions of Notes and Pari Passu Indebtedness any securities laws or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance regulations conflict with the terms provisions of this Section 46.9, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 6.9 by virtue thereof.
Appears in 3 contracts
Sources: Third Supplemental Indenture (Sally Beauty Holdings, Inc.), Second Supplemental Indenture (Sally Beauty Holdings, Inc.), Supplemental Indenture (Sally Investment Holdings LLC)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company and any Permitted Affiliate Parent will not, and will not permit any of its the Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer Company, such Permitted Affiliate Parent 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 conclusively in good faith by an Officer or the Board of Directors or senior management of the IssuerCompany or such Permitted Affiliate Parent (including as to the value of all non-cash consideration), of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); andDisposition;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent unless the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company, such Permitted Affiliate Parent or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After the receipt of Net Available Cash from an such Asset DispositionDisposition is applied by the Company, the Issuer Permitted Affiliate Parent or a such Restricted Subsidiary, as the case may be:
(A) to the extent the Company, the Permitted Affiliate Parent or any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects (or indirectly (at is required by the option terms of any Indebtedness), to prepay, repay or purchase Senior Indebtedness of the Issuer Company or such the Permitted Affiliate Parent (including the Facilities) or any Subsidiary Guarantor or Indebtedness of a Restricted Subsidiary):
Subsidiary that is not a Subsidiary Guarantor (1in each case other than Indebtedness owed to the Company, a Permitted Affiliate Parent or an Affiliate of the Company or Permitted Affiliate Parent) within 365 days from the later of (A) the date of such Asset Disposition and (B) or the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (A), the Issuer Company, the Permitted Affiliate Parent or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;or
(2B) to the extent the Issuer Company, the Permitted Affiliate Parent or such Restricted Subsidiary elects, elects to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) or the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors or senior management of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer Company that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days 6 months of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, that pending the final application of any such Net Available Cash in accordance with clauses clause (1), (2), (3A) or clause (4B) of this Section 4.08(c4.10(a)(3), the Issuer and the Company, a Permitted Affiliate Parent or such Restricted Subsidiaries Subsidiary may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this IndentureAgreement.
(db) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c4.10(a) will be deemed to constitute “Excess Proceeds”.” On
(c) To the 366th day extent that the Company, any Permitted Affiliate Parent or a Restricted Subsidiary is required pursuant to the terms of the Existing Senior Secured Indentures (or any similar terms in an instrument or agreement governing Senior Indebtedness other than the 546th dayFinance Documents) to make an offer to redeem or prepay the Indebtedness thereunder (an “Excess Proceeds Redemption Offer”), then the Company, any Permitted Affiliate Parent or a Restricted Subsidiary shall include the outstanding amounts under the Facilities in such offer to prepay (and shall provide notice of such offer to the case of any Net Available Cash committed to be used pursuant to Facility Agent), such that a definitive binding agreement or commitment approved by the Board of Directors portion of the Issuer pursuant Excess Proceeds (the “Prepayment Amount”) that is equivalent to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if proportion that the aggregate amount of Excess Proceeds exceeds $100 millionthe outstandings under the Facilities bears to the aggregate principal amount of other senior secured indebtedness is available to be applied and is so applied in prepayment of the outstanding amount plus accrued and unpaid interest owed to each Lender under the Facilities (to the extent that such Lender accepts any such offer of prepayment).
(d) To the extent that the Company, the Issuer will be any Permitted Affiliate Parent or a Restricted Subsidiary is not required within ten (10) Business Days thereof to make an offer Excess Proceeds Redemption Offer, the Company, any Permitted Affiliate Parent or a Restricted Subsidiary shall procure that the Excess Proceeds are applied in prepayment of the outstanding amounts plus accrued and unpaid interest under one or more Facilities selected by the Company.
(“e) Following compliance with the requirements of paragraph (c) and (d), the Company may use any remaining Excess Proceeds for general corporate purposes in any manner not prohibited by this Agreement.
(f) For the purposes of this Section 4.10, the following will be deemed to be cash:
(1) the assumption by the transferee of Indebtedness (other than Subordinated Obligations) of any Borrower, the Permitted Affiliate Parent or any Subsidiary Guarantor or Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor and the release of the Company, the Permitted Affiliate Parent, such Subsidiary Guarantor or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition Offer”(in which case the Borrower will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with Section 4.10(a)(3)(A) to all holders of this Agreement;
(2) securities, notes or other obligations received by the Notes andCompany, a Permitted Affiliate Parent or any Restricted Subsidiary from the transferee that are convertible by the Company, such Permitted Affiliate Parent 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 Issuer or a Guarantor electsCompany, or the Issuer or a Guarantor is required by the terms any Permitted Affiliate Parent and each other Restricted Subsidiary are released from any guarantee of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% payment of the principal amount of such Notes and 100Indebtedness in connection with such Asset Disposition;
(4) consideration consisting of Indebtedness of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary;
(5) any Designated Non-Cash Consideration received by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value not to exceed 25.0% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, consideration from such Asset Disposition (excluding any consideration received from such Asset Disposition in accordance with Section 4.10(f)(1) to Section 4.10(f)(4)) (with the procedures set forth 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 this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and value); and
(6) in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect addition to any Net Available Designated Non-Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn Consideration received pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance PortionSection 4.10(f)(5), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Designated Non-Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually Consideration received by the Issuer.
(h) The Company, a Permitted Affiliate Parent or any Restricted Subsidiary in such Asset Disposition OfferDispositions having an aggregate fair market value, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply taken together with Section 14(e) of the Exchange Act and any all other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it Designated Non-Cash Consideration received pursuant to this Section 4.08 4.10(f)(6) that is at that time outstanding, not to exceed the greater of €300.0 million and 5.0% of Total Assets (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms fair market value of this Section 4each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
Appears in 2 contracts
Sources: Super Senior Facilities Agreement (Liberty Global PLC), Senior Facilities Agreement (Liberty Global PLC)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the IssuerCompany, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.; and
(c3) After an amount equal to 100% of the receipt of Net Available Cash from an such Asset DispositionDisposition is applied by the Company or such Restricted Subsidiary, as the Issuer case may be:
(A) to the extent the Company or a any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects (or indirectly (at is required by the option terms of the Issuer or such any Indebtedness of a Restricted Subsidiary):
), (1i) to prepay, repay or purchase any Indebtedness of a Restricted Subsidiary that is not a Guarantor (in each case, other than Indebtedness owed to the Company or any Restricted Subsidiary or Indebtedness under the Senior Facilities Agreement or the Encore Private Placement Notes Agreement (or any Refinancing Indebtedness in respect thereof) within 365 days from the later of (Ax) the date of such Asset Disposition and (By) the receipt of such Net Available Cash Cash; or (iii) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment repay or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, repayment or purchase or redemptionwithin 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided that the Issuer Company or such Guarantor, as applicable, a Restricted Subsidiary shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer Company makes (at such time or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes subsequently in compliance with this Section 4.10) an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of accordance with the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, provisions set forth below for an Asset Disposition Offer for an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;or
(2B) to the extent the Issuer Company or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer Company that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
provided further, that if the assets (4including Capital Stock) sold constitute Collateral, subject to the Agreed Security Principles, the Company shall pledge or shall cause the applicable Restricted Subsidiary to pledge any combination acquired Additional Assets (to the extent such assets (including Capital Stock) were of clauses a category of assets included in the Collateral as of the Issue Date) in favor of the Notes on a first-ranking basis (1) through (3) of Section 4.08(csubject to pre-existing Liens and Permitted Collateral Liens), provided that, pending the final application of any such Net Available Cash in accordance with clauses clause (1), (2), (3A) or clause (4B) of Section 4.08(c)above, the Issuer Company and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(db) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in the preceding paragraph, or offered to be applied in accordance with Section 4.08(c4.10(a)(3)(A)(ii) above, will be deemed to constitute “Excess Proceeds.” ”. On the 366th day (after an Asset Disposition, or at such earlier date that the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available CashCompany elects, if the aggregate amount of Excess Proceeds exceeds $100 million25.0 million (or equivalent thereof), the Issuer will Company or another Restricted Subsidiary shall be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes Holders and, to the extent the Issuer Company or a Guarantor such Restricted Subsidiary elects, or the Issuer or a Guarantor is required by the terms to all holders of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture Section 3.09 or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 £100,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $£1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 2 contracts
Sources: Indenture (Encore Capital Group Inc), Indenture (Encore Capital Group Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Borrower will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1i) the Issuer Borrower 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 (such fair market value to be determined on as of the date of contractually agreeing to on which a legally binding commitment for such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the Issuer, Disposition was entered into) of the shares and assets subject to such Asset Disposition Disposition, as such fair market value may be determined (includingand shall be determined, for to the avoidance of doubt, if extent such Asset Disposition is a Permitted or any series of related Asset SwapDispositions involves aggregate consideration in excess of $50,000,000the greater of $100,000,000 and 6.50% of Consolidated Tangible Assets) in good faith by the Borrower, whose determination shall be conclusive (including as to the value of all non-cash consideration); and;
(2ii) in the case of any such Asset Disposition, Disposition (or series of related Asset Dispositions Dispositions) having a fair market value (except to as determined in good faith by the extent Borrower, whose determination shall be conclusive), as of the date on which a legally binding commitment for such Asset Disposition is a Permitted Asset Swap)was entered into) of $50,000,000 of the greater of $100,000,000 and 6.50% of Consolidated Tangible Assets or more, at least 7575.0% of the consideration from such therefor (excluding, in the case of an Asset Disposition (or such series of related Asset Dispositions (excluding Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than that are not Indebtedness)) received by the Borrower or such Restricted Subsidiary for such Asset Disposition, when taken together with any consideration received by the Borrower or any Restricted Subsidiary in connection with all other Asset Dispositions since the Issue Closing Date (except on a cumulative basis) received by the Borrower or any Restricted Subsidiary, is in the form of cash; and
(iii) either (x) if the Borrower or such Restricted Subsidiary elects, to the extent any such Asset Disposition was a Permitted or Recovery Event is an Asset Swap) on a cumulative basis received Disposition or Recovery Event of assets that constitute ABL Priority Collateral, to purchase, redeem, repay or prepay, to the extent the Borrower or any Restricted Subsidiary is required by the Issuer terms thereof, Indebtedness under the Senior ABL Facility or (in the case of letters of credit, bankers’ acceptances or other similar instruments issued thereunder) cash collateralize any such Indebtedness within the time period required by such Indebtedness after the later of the date of such Asset Disposition or Recovery Event, as the case may be, and the date of receipt of such Net Available Cash or (y) to the extent required by Subsection 8.4(b), the Net Available Cash from such Asset Disposition (such amount, the “Net Available Cash Amount”) is applied by the Borrower (or any Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments) as provided therein.
(cb) After In the receipt event that on or after the Closing Date the Borrower or any Restricted Subsidiary shall make an Asset Disposition or a Recovery Event in respect of Collateral shall occur, subject to Subsection 8.4(a), an amount equal to 100.0% (as such percentage may be adjusted pursuant to clause (3) of the proviso to this Subsection 8.4(b)) of the Net Available Cash from an such Asset Disposition, Disposition or Recovery Event shall be applied by the Issuer Borrower (or a any Restricted Subsidiary, as the case may be) as follows:
(i) first, may apply to the extent the Borrower or such Restricted Subsidiary elects (by delivery of an officer’s certificate by a Responsible Officer to the Administrative Agent) to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash directly received by the Borrower or indirectly (at the option of the Issuer or such another Restricted Subsidiary):
(1) within 365 (x) 540720 days from after the later of (A) the date of such Asset Disposition or Recovery Event, as the case may be, and (B) the date of receipt of such Net Available Cash (such period the “Reinvestment Period”) or, (y) if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 540720 days to complete and is subject to a binding written commitment or letter of intent entered into during the Reinvestment Period, an additional 180 days after the last day of the Reinvestment Period (it being understood and agreed that if no such investment is made within the Reinvestment Period as extended by this clause (y), the Borrower shall make the prepayments required by Subsection 8.4(b)(ii) onwithin ten Business Days after the earlier to occur of (I) the last day of such Reinvestment Period as extended by this clause (y) and (II) the date the Borrower elects not to pursue such investment);
(ii) second, (1) if no application of Net Available Cash election is made pursuant to the preceding clause (i) with respect to prepaysuch Asset Disposition or Recovery Event or (2) if such election is made to the extent of the balance of such Net Available Cash or equivalent amount after application in accordance with Subsection 8.4(b)(i), within ten Business Days after the end of the Reinvestment Period specified in clause (i) above (as extended pursuant to clause (y) of such clause (i)) (x) to the extent such Asset Disposition or Recovery Event is an Asset Disposition or Recovery Event of assets that constitute Collateral, to purchase, redeem, repay, purchase prepay, make an offer to prepay or redeem any Indebtedness incurred under Section 4.04(b)(1repurchase, or deliver a notice of redemption, in accordance with Subsection 4.4(e)(i) (subject to Subsection 4.4(h)) or the agreements or instruments governing the relevant Indebtedness described in clause (B) below (subject to any Guarantor Indebtednessprovision under such agreement or instrument analogous to Subsection 4.4(h)), as applicable, (A) the Term Loans and (B) to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof any Pari Passu Indebtedness on no more than a pro rata basis with the Term Loans and (y) to the extent such Asset Disposition is an Asset Disposition of assets that do not constitute Collateral, to purchase, redeem, repay, prepay, make an offer to prepay or repurchase, or deliver a notice of redemption, in accordance with Subsection 4.4(e)(i) (subject to Subsection 4.4(h)) or the agreements or instruments governing any relevant Indebtedness permitted under Subsection 8.1 (subject to any provision under such agreement or instrument analogous to Subsection 4.4(h)), as applicable, (A) the Term Loans and (B) to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof, any other Indebtedness (other than Indebtedness subordinated in right of payment to the Term Loan Facility Obligations) on no more than a pro rata basis with the Term Loans; and
(iii) third, to the extent of the balance of such Net Available Cash Amount or equivalent amount after application in accordance with Subsections 8.4(b)(i) and (ii) above (including an amount equal to the amount of any prepayment otherwise contemplated by clause (ii) above in connection with such Asset Disposition or Recovery Event that is declined by any Lender), to fund (to the extent consistent with any other applicable provision of this Agreement) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any Junior Debt or the making of other Restricted Payments); provided, however, that, that (1) in connection with any prepayment, repayment repayment, purchase or purchase redemption of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i)clause (ii) above, the Issuer Borrower or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii2) unless included the Borrower (or any Restricted Subsidiary, as the case may be) may elect to invest in Section 4.08(c)(1)(B)(iAdditional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that, such investment shall be made no earlier than the earliest of notice of the relevant Asset Disposition to the Administrative Agent, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with Subsection 8.4(b)(i) above with respect to such Asset Disposition; and (3) the percentage first set forth above in this Subsection 8.4(b) shall be reduced to (x) 50.0% if the Consolidated Secured Leverage Ratio at the time of such Asset Disposition (or, at the Borrower’s option, on the date a legally binding commitment for such Asset Disposition was entered into) or Recovery Event would be less than or equal to 4.23.25:1.00 and (y) 0.0% if the Consolidated Secured Leverage Ratio at the time of such Asset Disposition (or, at the Borrower’s option, on the date a legally binding commitment for such Asset Disposition was entered into) or Recovery Event would be less than or equal to 3.72.75:1.00, in each case after giving pro forma effect thereto and to any application of Net Available Cash as set forth herein (any Net Available Cash in respect of such Asset Dispositions not required to be applied in accordance with this Subsection 8.4(b) as a result of the application of this proviso shall collectively constitute “Leverage Excess Proceeds”).
(c) Notwithstanding the foregoing provisions of this Subsection 8.4, the Borrower and the Restricted Subsidiaries shall not be required to prepayapply any Net Available Cash or equivalent amount in accordance with this Subsection 8.4 except to the extent that (x) the aggregate Net Available Cash from all Asset Dispositions and Recovery Events in respect of Collateral or equivalent amount that is not applied in accordance with this Subsection 8.4 (excluding all Leverage Excess Proceeds) exceeds $40,000,000the greater of $80,000,000 and 5.00% of Consolidated Tangible Assets, repay, purchase in which case the Borrower and the Restricted Subsidiaries shall apply all of such Net Available Cash from such Asset Dispositions and Recovery Events or redeem equivalent amount from such Asset Dispositions in excess of this $40,000,000such threshold in accordance with Subsection 8.4(b) or (y) the terms of any Pari Passu Indebtedness would require Net Available Cash or the equivalent amount from such Asset Dispositions and Recovery Events to be applied to purchase, redeem, repay or prepay such Indebtedness prior to reaching such $40,000,000greater of $80,000,000 and 5.00% of Consolidated Tangible Assets threshold.
(d) For the purposes of Subsection 8.4(a)(ii), the following are deemed to be cash: (1) Temporary Cash Investments and Cash Equivalents, (2) the assumption of Indebtedness of the Issuer Borrower (other than Disqualified Stock of the Borrower) or any Guarantor, at a price Restricted Subsidiary and the release of no more than 100% the Borrower or such Restricted Subsidiary from all liability on payment of the principal amount of such Pari Passu Indebtedness plus accrued and unpaid interest 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 date of such prepayment, repayment, purchase or redemption; provided extent that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% Borrower and each other Restricted Subsidiary are released from any Guarantee of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% payment of the principal amount of such NotesIndebtedness in connection with such Asset Disposition, plus accrued and unpaid interest to, but not including, (4) securities received by 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase Borrower or redeem any Indebtedness of a Restricted Subsidiary from the transferee that is not a Guarantor are converted by the Borrower or any Indebtedness that is secured on assets such Restricted Subsidiary into cash within 180 days, (other than Subordinated 5) consideration consisting of Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer Borrower or any Restricted Subsidiary); , (iv6) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereofAdditional Assets, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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 date7) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash any Designated Noncash Consideration received by the Issuer Borrower or another any of its Restricted SubsidiarySubsidiaries in an Asset Disposition having an aggregate fair market value (as determined by the Borrower in good faith, which determination shall be conclusive), taken together with all other Designated Noncash Consideration received pursuant to this clause (7), not to exceed an aggregate amount at any time outstanding equal to the greater of $87,500,000190,000,000 and 11.50% of Consolidated Tangible Assets (with the fair market value (as determined by the Borrower in good faith, which determination shall be conclusive) within 365 days from the later of (i) each item of Designated Noncash Consideration being measured on the date of a legally binding commitment for such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in the case of an Advance Offer, the Advance Portionvalue), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 2 contracts
Sources: Credit Agreement (Core & Main, Inc.), Credit Agreement (Core & Main, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1i) the Issuer 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 (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition, as such fair market value shall be determined in good faith by the Company, which determination shall be conclusive (including as to the value of all noncash consideration),
(ii) in the case of any Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is Dispositions) having a Permitted Asset Swap)fair market value of $25.0 million or more, at least 7575.0% of the consideration from such therefor (excluding, in the case of an Asset Disposition (or such series of related Asset Dispositions (excluding Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than that are not Indebtedness)) received by the Company or such Restricted Subsidiary is in the form of cash, together with all other Asset Dispositions since and
(iii) an amount equal to 100% of the Issue Date (except to the extent any Net Available Cash from such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received is applied by the Issuer Company (or such any Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.) as follows:
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and first, either (B) the receipt of such Net Available Cash (ix) to prepay, repay, purchase the extent the Company elects (or redeem is required by the terms of any Secured Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of other Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment secured by a Lien (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum other than Subordinated Obligations), any Senior Indebtedness of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase Company or redeem any Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Guarantor Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness that is secured on assets or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness (in each case other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer Company or any a Restricted Subsidiary); (iv) to purchase within 450 days after the Notes through open-market purchases at a price equal to or higher than 100% later of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, the date of purchase (subject to such Asset Disposition and the right date of Holders receipt of record on the relevant record date to receive interest due on the relevant interest payment date) such Net Available Cash, or (v) to redeem the Notes as described under Section 3.07;
(2y) to the extent that the Issuer Company or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 450 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, or, if such investment in Additional Assets is a project authorized by the aggregate amount Board of Excess Proceeds exceeds $100 millionDirectors that will take longer than such 450 days to complete, the Issuer will be required within ten period of time necessary to complete such project;
(10B) Business Days thereof 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 (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer Company or a Guarantor such Restricted Subsidiary elects, or the Issuer or a Guarantor is required by the terms thereof) to purchase, redeem or repay any other Senior Indebtedness of the Company or a Restricted Subsidiary, pursuant and subject to Section 411(b) and Section 411(c) and the agreements governing such other outstanding Pari Passu Indebtedness; and
(C) third, to all holders 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 (B) above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 411, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 411 except to the extent that the aggregate Net Available Cash from all Asset Dispositions or equivalent amount that is not applied in accordance with this Section 411 exceeds $75.0 million. If the aggregate principal amount of Notes and/or other Indebtedness of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to clause (B) above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to the denominator of which is the Asset Disposition Offer applies that may be purchased out sum of the Excess Proceeds, at an offer price in respect outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. For the purposes of clause (ii) of paragraph (a) above, the following are deemed to be cash: (1) Temporary Cash Investments and Cash Equivalents, (2) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days, (5) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary, (6) Additional Assets and (7) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause, not to exceed an aggregate amount at any time outstanding equal to the greater of $125.0 million and 2.5% of Consolidated Tangible Assets (andwith the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(b) In the event of an Asset Disposition that requires the purchase of Notes pursuant to Section 411(a)(iii)(B), the Company will be required to purchase Notes tendered pursuant to an offer by the Company for the Notes (the “Offer”) at a purchase price of 100% of their principal amount plus accrued and unpaid interest to the date of purchase in accordance with the procedures (including prorating in the case event of any Pari Passu Indebtedness, an offer oversubscription) set forth in this Indenture. If the aggregate purchase price of no more thanthe Notes tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of Notes, the remaining Net Available Cash will be available to the Company for use in accordance with Section 411(a)(iii)(B) (to repay other Indebtedness of the Company or a Restricted Subsidiary) or Section 411(a)(iii)(C). The Company shall not be required to make an Offer for Notes pursuant to this Section 411 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 411(a)(iii)(A)) is less than $75.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). No Note will be repurchased in part if less than the Minimum Denomination in original principal amount of such Note would be left outstanding.
(c) The Company shall, not later than 45 days after the Company becomes obligated to make an Offer pursuant to this Section 411, mail a notice to each Holder with a copy to the Trustee 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 a portion of such Holder’s Notes at a purchase price in cash equal to 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each casethereof, plus accrued and unpaid interest, if any, to, but not including, to the date of purchase, in accordance with the procedures set forth purchase (subject to provisions in this Indenture or regarding the agreements governing preservation of payment of interest rights); (2) the Pari Passu Indebtednessrepurchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed); (3) the instructions determined by the Company, as applicableconsistent with this Section 411, that a Holder must follow in order to have its Notes purchased; and in (4) the case amount of the NotesOffer. If, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce upon the principal amount at maturity expiration of the Notes held by any holder to below $200,000. The Issuer may satisfy period for which the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (orremains open, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) Company shall be allocated among select the Notes and Pari Passu Indebtedness 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 the aggregate principal amount Minimum Denomination or integral multiples of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated $1,000 in dollars, such Indebtedness excess thereof shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined belowpurchased). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(gd) To The Company will comply, to the extent that any portion applicable, with the requirements 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount repurchase of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to 411. To the extent lawful, accept for payment, on a pro rata basis to that the extent necessary, the Asset Disposition Offer Amount provisions of Notes and Pari Passu Indebtedness any securities laws or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance regulations conflict with the terms provisions of this Section 4411, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 411 by virtue thereof.
Appears in 2 contracts
Sources: Indenture (Hd Supply, Inc.), Indenture (LBM Holdings, LLC)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the IssuerCompany, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 7575.0% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief fromDisposition, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After an amount equal to 100.0% of the receipt of Net Available Cash from an such Asset Disposition, Disposition is applied:
(i) to the Issuer extent the Company or a any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects (or indirectly is required by the terms of any Indebtedness), (at A) to prepay, repay or purchase any Indebtedness of a non-Guarantor or any Secured Indebtedness (in each case, other than Indebtedness owed to the option of the Issuer Company or such any Restricted Subsidiary):
), including Indebtedness under the Credit Agreement (1or any Refinancing Indebtedness in respect thereof) within 365 450 days from the later of (Aa) the date of such Asset Disposition and (Bb) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (i), the Issuer Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; or (iiB) unless included in Section 4.08(c)(1)(B)(i), to prepay, repayrepay or purchase Pari Passu Indebtedness; provided further that, purchase to the extent the Company redeems, repays or redeem any repurchases Pari Passu Indebtedness of pursuant to this clause (B), the Issuer Company 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 any Guarantor, at a price of no more than 100above 100.0% of the principal amount of such Pari Passu Indebtedness plus accrued and unpaid interest thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to the date of such prepayment, repayment, all Holders to purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases their Notes at a price equal to or higher than 100100.0% of the principal amount thereof, or makes an offer to plus the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notesaccrued but unpaid interest, plus accrued and unpaid interest toif any, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtednesswould otherwise be prepaid; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;and
(2ii) to the extent the Issuer Company or such any Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with equal to the amount of Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 450 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or shall be treated as a permitted application of Net Available Cash from the date of such commitment approved by with the Board of Directors of the Issuer good faith expectation that is executed or approved within an amount equal to Net Available Cash will be applied to satisfy such time will satisfy this requirement, so long as such investment is consummated commitment within 180 days of such 365th daycommitment (an “Acceptable Commitment”) and, in the event of any Acceptable Commitment is later cancelled or terminated for any reason before such amount is applied in connection therewith, the Company or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; or
(4) provided further that if any combination of clauses (1) through (3) of Section 4.08(c)Second Commitment is later cancelled or terminated for any reason before such amount is applied, then such Net Available Cash shall constitute Excess Proceeds; provided that, pending the final application of the amount of any such Net Available Cash in accordance with clauses clause (1), (2), (3i) or clause (4ii) of Section 4.08(c)above, the Issuer Company and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest use such Net Available Cash in any manner not prohibited by this Indenture.
(db) Any The amount of any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) the preceding paragraph will be deemed to constitute “Excess Proceeds.” under this Indenture. On the 366th 451st day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such an Asset Disposition and (B) or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds under this Indenture exceeds $100 50.0 million, the Issuer Company will within 10 Business Days be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders Holders of the Notes issued under this Indenture and, to the extent the Issuer or a Guarantor Company elects, or the Issuer or a Guarantor is required by the terms to all holders of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100100.0% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of and, with respect to the Notes, in minimum denominations of $200,000 2,000 and in integral multiples of $1,000 in excess thereof. No The Company will deliver notice of such purchase Asset Disposition Offer electronically or by first-class mail, with a copy to the Trustee, the Paying Agent and each Holder of Notes at the address of such Holder appearing in part shall reduce the principal amount at maturity security register or otherwise in accordance with the applicable procedures of DTC, describing the transaction or transactions that constitute the Asset Disposition and offering to repurchase the Notes held for the specified purchase price on the date specified in the notice, which date will be no earlier than 15 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by any holder to below $200,000this Indenture and described in such notice. The Issuer Company may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such all Net Available Cash prior to the time expiration of the relevant 450 days (or such longer period that may be required by this Indenture provided above) or with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”)any unapplied Excess Proceeds.
(e) [Reserved].
(fc) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Issuer and the Restricted Subsidiaries Company may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent any purpose not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), Company shall allocate the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such ; provided that no Notes or other Pari Passu Indebtedness not denominated will be selected and purchased in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)an unauthorized denomination. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Additionally, and in the case Company may, at its option, make an Asset Disposition Offer using proceeds from any Asset Disposition at any time after the consummation of an Advance such Asset Disposition. Upon consummation or expiration of any Asset Disposition Offer, the amount of any remaining Net Available Cash shall not be deemed Excess Proceeds and the Issuer is offering to apply in Company may use such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) Net Available Cash for any purpose not prohibited by this Indenture. To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than dollarsDollars, the amount thereof payable in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in Dollars that is actually received by the IssuerCompany upon converting such portion into Dollars.
(hd) The 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 Offerby a Foreign Subsidiary (a “Foreign Disposition”) is (x) prohibited or delayed by applicable local law, in so far as it relates (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous organizational or administrative impediments from being repatriated to the NotesUnited States, the portion of such Net Available Cash so affected will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time be required to comply be applied in compliance with Section 14(e) of this covenant, and such amounts may be retained by the Exchange Act and any other applicable securities laws Foreign Subsidiary so long, but only so long, as the applicable local law documents or regulations in connection with agreements will not permit repatriation to the Asset Disposition Offer United States (the “Asset Disposition Offer Period”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). No , 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 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 such repatriation actually occurs) in compliance with this Section 3.5; and
(ii) to the termination extent that the Company has determined in good faith that repatriation of any of or all the Asset Net Available Cash of any Foreign Disposition Offer Period would have an adverse Tax consequence (which for the “Asset Disposition Purchase Date”avoidance of doubt, includes, but is not limited to, any prepayment whereby doing so the Company, any Subsidiary, or any of their respective Affiliates and/or equity owners would incur a tax liability, including a taxable dividend, deemed dividend pursuant to Code Section 956 or a withholding tax), the Issuer Net Available Cash so affected will purchase not be required to be applied in accordance with this Section 3.5. The non-application of any prepayment amounts as a consequence of the principal amount foregoing provisions will not, for the avoidance of Notes anddoubt, 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 Subordinated Indebtedness of the Company or 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;
(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 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 it electsthat 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) 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, Pari Passu Indebtedness required to be purchased by it taken together with all other Designated Non‑Cash Consideration received pursuant to this Section 4.08 covenant that is at that time outstanding, not to exceed the greater of $20.0 million and 2.0% of Total Assets (with the “Asset Disposition Offer Amount”) or, if less than fair market value of each item of Designated Non‑Cash Consideration being measured at the Asset Disposition Offer Amount has been so validly tendered, all Notes time received and Pari Passu Indebtedness validly tendered without giving effect to subsequent changes in response to the Asset Disposition Offervalue).
(if) On To the extent that the provisions of any securities laws, rules or before regulations, including Rule 14e-1 under the Asset Disposition Purchase DateExchange Act, conflict with the provisions of this Indenture, the Issuer willCompany will comply with the applicable securities laws, rules and regulations and shall not be deemed to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, have breached its obligations described in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess this Indenture by virtue thereof.
(jg) The Issuer will deliver provisions of this Indenture relative to the Trustee Company’s obligation to make an Officer’s Certificate stating that such offer to repurchase the Notes as a result of an Asset Disposition may be waived or portions thereof were accepted for payment by the Issuer in accordance modified with the terms written consent of this Section 4the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 2 contracts
Sources: Indenture (GCP Applied Technologies Inc.), Indenture (W R Grace & Co)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After an amount equal to 100% of the receipt of Net Available Cash from an such Asset Disposition, Disposition is applied by the Issuer or a such Restricted Subsidiary, as the case may be:
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects (or indirectly is required by the terms of any Indebtedness), (at the option A) to prepay, repay or purchase any Indebtedness of a Non-Guarantor or that is secured by a Lien (in each case, other than Indebtedness owed to the Issuer or such any Restricted Subsidiary):
) or Indebtedness under the Credit Agreement (1or any Refinancing Indebtedness with respect thereof) within 365 450 days from the later of (Aa) the date of such Asset Disposition and (Bb) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; or (iiB) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, repay or purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase repayment or redemptionpurchase; provided that that, to the extent the Issuer redeems, repays or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase repurchases Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if B), the Issuer or such Guarantor purchases 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 a price equal 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 or higher than all Holders to purchase their Notes at 100% of the principal amount thereof, or makes an offer to plus the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notesaccrued but unpaid interest, plus accrued and unpaid interest toif any, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtednesswould otherwise be prepaid; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;or
(2ii) to the extent the Issuer Company or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 450 days from the later of (iA) the date of such Asset Disposition and (iiB) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th 450th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses clause (1), (2), (3i) or clause (4ii) of Section 4.08(c)above, the Issuer and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest use such Net Available Cash in any manner not prohibited by this Indenture.
(db) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) the preceding paragraph will be deemed to constitute “Excess Proceeds.” under this Indenture. On the 366th 451st day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such an Asset Disposition and (B) the receipt of such Net Available CashDisposition, if the aggregate amount of Excess Proceeds under this Indenture exceeds $100 50.0 million, the Issuer will within 10 Business Days be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders Holders of the Notes issued under such indenture and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms to all holders of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of and, with respect to the Notes, in minimum denominations of $200,000 2,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(fc) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, subject to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(gd) 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 in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in U.S. dollars that is actually received by the IssuerIssuer upon converting such portion into U.S. dollars.
(he) 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 Issuer or a Restricted Subsidiary (other than Subordinated Indebtedness of the Issuer or a Guarantor) and the release of the Issuer 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 Issuer or any Restricted Subsidiary of the Issuer from the transferee that are converted by the Issuer 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 Issuer 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 Issuer (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Issuer or any Restricted Subsidiary; and
(5) any Designated Non-Cash Consideration received by the Issuer 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) $40.0 million and (ii) 1.5% of Total Assets (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) The Asset Disposition OfferIssuer will comply, in so far as it relates to the Notesextent applicable, will remain open for a period with the requirements of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations (or rules of any exchange on which the Notes are then listed) in connection with the Asset Disposition Offer repurchase of Notes pursuant to this Indenture. To the extent that the provisions of any securities laws or regulations (the “Asset Disposition Offer Period”). No later than five (5or exchange rules) Business Days after the termination conflict with provisions of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”)this Section 3.5, the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance comply with the terms applicable securities laws and regulations (or exchange rules) and will not be deemed to have breached its obligations under this Indenture by virtue of this Section 4any conflict.
Appears in 2 contracts
Sources: Indenture (Epicor International Holdings, Inc.), Indenture (Epicor Software Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Borrower will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1a) the Issuer Borrower 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 (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition Disposition, as such fair market value may be determined (includingand shall be determined, for to the avoidance of doubt, if extent such Asset Disposition is a Permitted or any series of related Asset SwapDispositions involves aggregate consideration in excess of the greater of $65.0 million and 10.0% of Consolidated EBITDA, in good faith by the Board of Directors, whose determination shall be conclusive (including as to the value of all noncash consideration); and,
(2b) in the case of any such Asset Disposition, Disposition (or series of related Asset Dispositions (except to Dispositions) having a fair market value of the extent the Asset Disposition is a Permitted Asset Swap)greater of $97.5 million and 15.0% of Consolidated EBITDA or more, at least 75% of the consideration from such therefor (excluding, in the case of an Asset Disposition (or such series of related Asset Dispositions (excluding Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than that are not Indebtedness)) received by the Borrower or such Restricted Subsidiary is in the form of cash, together with all other Asset Dispositions since and
(c) an amount equal to 100% of the Issue Date (except to the extent any Net Proceeds from such Asset Disposition was a Permitted Asset Swapdescribed in clause (b) on a cumulative basis received is applied by the Issuer Borrower (or such any Restricted Subsidiary, as the case may be, is ) in accordance with the form requirements of cash, Cash Equivalents or Temporary Cash Investments.
Section 2.09(b)(iii): For the purposes of paragraph (cb) After the receipt of Net Available Cash from an Asset Dispositionabove, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
following are deemed to be cash: (1) within 365 days from the later of Cash Equivalents, (A2) the date assumption of such Asset Disposition and Indebtedness, other than Indebtedness that is by its terms subordinated to the Obligations, of the Borrower (B) other than Disqualified Stock of the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1Borrower) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase Restricted Subsidiary and the release of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer Borrower or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, at a price of no more than 100% from all liability on payment of the principal amount of such Pari Passu Indebtedness plus accrued and unpaid interest to the date of in connection with such prepaymentAsset Disposition, repayment(3) Indebtedness, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu other than Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer by its terms subordinated to the Holders Obligations, of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the Notes to purchase their Notes at a purchase price in cash equal to at least 100% extent that the Borrower and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such NotesIndebtedness in connection with such Asset Disposition, plus accrued (4) securities received by the Borrower or any Restricted Subsidiary from the transferee that are converted by the Borrower or such Restricted Subsidiary into cash within 180 days, (5) Additional Assets and unpaid interest to, but not including, (6) any Designated Non-cash Consideration received by the date Borrower or any 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) for, its Restricted Subsidiaries in each case, an Asset Disposition having an aggregate principal Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause, not to exceed an aggregate amount of Notes at least any time outstanding equal to the proportion greater of $260.0 million and 40.0% of Consolidated EBITDA for the Relevant Reference Period (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). Notwithstanding anything to the contrary herein, in no event shall the Borrower or any Guarantor make any Asset Disposition pursuant to this Section 6.04 or make any sale, transfer or other disposition pursuant to an exclusion from the definition of “Asset Disposition” consisting of any Intellectual Property (as defined in the Security Agreement) that (x) is material to the total aggregate principal amount business of Notes outstanding bears to (y) Holdings, the sum of Borrower and the total aggregate principal amount of Notes outstanding plus Restricted Subsidiaries, taken as a whole, at the total aggregate principal amount outstanding time of such Pari Passu Indebtedness; (iii) sale or transfer, to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted an Unrestricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of except for (i) any such transaction that complies with the date terms of Section 6.04(a) (even if such transaction is not an “Asset Disposition Disposition” and is made pursuant to an exclusion from the definition of “Asset Disposition”), Section 6.04(b) ((i) even if such transaction is not an “Asset Disposition” and is made pursuant to an exclusion from the definition of “Asset Disposition” and (ii) applying the receipt 75% cash consideration test set forth therein regardless of the fair market value of such Net Available Cash; provided, however, that any transaction) and Section 6.04(c) (even if such reinvestment in Additional Assets transaction is not an “Asset Disposition” and is made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days an exclusion from the later definition of (A) the date of such “Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1Disposition”), (2), ii) any transfer (3other than any transfer in connection with a financing transaction) by the Borrower or (4) of Section 4.08(c), the Issuer and the a Guarantor to a Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions Subsidiary that is not applied or invested or committed a Loan Party of such Intellectual Property that is related to the anticipated business activities to be applied conducted by such Restricted Subsidiary that is not a Loan Party (as determined by the Borrower in good faith) and (iii) granting any Restricted Subsidiary that is not a Loan Party or invested as provided Unrestricted Subsidiary a non-exclusive license in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, such Intellectual Property in the case ordinary course of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”)business.
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 2 contracts
Sources: Credit Agreement (Mattress Firm Group Inc.), Credit Agreement (Mattress Firm Group Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the IssuerCompany, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After an amount equal to 100% of the receipt of Net Available Cash from an such Asset DispositionDisposition is applied by the Company or such Restricted Subsidiary, as the Issuer case may be:
(i) to the extent the Company or a any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects (or indirectly is required by the terms of any Indebtedness), (at A) to prepay, repay or purchase any Indebtedness of a Non-Guarantor or that is secured by a Lien (in each case, other than Indebtedness owed to the option of the Issuer Company or such any Restricted Subsidiary):
) or Indebtedness under the Credit Agreement (1or any Refinancing Indebtedness in respect thereof) within 365 days from the later of (A1) the date of such Asset Disposition and (B2) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (i), the Issuer Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; or (iiB) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, repay or purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase repayment or redemptionpurchase; provided that further that, to the Issuer extent the Company or such GuarantorRestricted Subsidiary redeems, as applicable, shall prepay, redeem, repay repays or repurchase repurchases Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if B), the Issuer or such Guarantor purchases Company 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 a price equal 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 or higher than all Holders to purchase their Notes at 100% of the principal amount thereof, or makes an offer to plus the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notesaccrued but unpaid interest, plus accrued and unpaid interest toif any, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtednesswould otherwise be prepaid; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;or
(2ii) to the extent the Issuer Company or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 days from the later of (iA) the date of such Asset Disposition and (iiB) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer Company that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 270 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses clause (1), (2), (3i) or clause (4ii) of Section 4.08(c)above, the Issuer Company and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest use such Net Available Cash in any manner not prohibited by this Indenture.
(db) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) the preceding paragraph will be deemed to constitute “Excess Proceeds.” under this Indenture. On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such an Asset Disposition and (B) the receipt of such Net Available CashDisposition, if the aggregate amount of Excess Proceeds under this Indenture exceeds $100 50.0 million, the Issuer Company will within 10 Business Days be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders Holders of the Notes issued under this Indenture and, to the extent the Issuer or a Guarantor Company elects, or the Issuer or a Guarantor is required by the terms to all holders of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of and, with respect to the Notes, in minimum denominations of $200,000 2,000 and in integral multiples of $1,000 in excess thereof. No The Company will deliver notice of such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer electronically or by first-class mail, with respect to such Net Available Cash prior a copy to the time period 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 may 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 with respect to all or a part of the available Net Available Cash (the “Advance Portion”) and described in advance of being required to do so by this Indenture (an “Advance Offer”)such notice.
(e) [Reserved].
(fc) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Issuer and the Restricted Subsidiaries Company may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent any purpose not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such , provided that no Notes or other Pari Passu Indebtedness not denominated will be selected and purchased in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)an unauthorized denomination. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(gd) 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 in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in U.S. dollars that is actually received by the IssuerCompany upon converting such portion into U.S. dollars.
(he) For the purposes of Section 3.5(a)(2), 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 Subordinated Indebtedness of the Company or 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;
(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) 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) $75.0 million and (ii) 2.50% of Total Assets (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) The Asset Disposition OfferCompany will comply, in so far as it relates to the Notesextent applicable, will remain open for a period with the requirements of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) 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 in connection conflict with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination provisions of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”)this Indenture, the Issuer Company will purchase comply with the principal amount of Notes and, applicable securities laws and regulations and shall not be deemed to the extent it elects, Pari Passu Indebtedness required to be purchased have breached its obligations under this Indenture by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess virtue thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 2 contracts
Sources: Indenture (Valley Telephone Co., LLC), Indenture (Valley Telephone Co., LLC)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset 17 Disposition unless:
unless (1i) the Issuer Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) such Asset 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 an Officer or the Board of Directors (including as to the value of the Issuerall non-cash consideration), of the shares and assets subject to such Asset Disposition and (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and
(2ii) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 7580% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis thereof received by the Issuer Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cashcash or Cash Equivalents. 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, Cash Equivalents the Company or Temporary Cash Investments.
(c) After such Restricted Subsidiary shall apply an amount equal to 100% of the receipt of Net Available Cash from an such Asset DispositionDisposition at its election, to either (i) prepay, repay or purchase Indebtedness (other than any Subordinated Obligations or Preferred Stock) of the Issuer Company or a Restricted Subsidiary, as Wholly-Owned Subsidiary (in each case other than Indebtedness owed to the case may be, may apply such Net Available Cash directly Company or indirectly (at the option an Affiliate of the Issuer or such Restricted Subsidiary):
(1Company) within 365 days from the later of (A) the date of such Asset Disposition and (B) or the receipt of such Net Available Cash Cash; (iii) invest in Additional Assets within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; or (iii) make an offer to prepaypurchase the Securities at 100% of the principal amount thereof plus accrued and unpaid interest, repayif any, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtednessto the date of purchase; providedPROVIDED, howeverHOWEVER, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i)clause (i) above, the Issuer Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received required by the Issuer or another Senior Credit Agreement. Notwithstanding the foregoing provisions, the Company and its Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that Subsidiaries will not be required to apply any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), herewith except to the Issuer and extent that the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such aggregate Net Available Cash from all Asset Dispositions which are not applied in any manner not prohibited by accordance with this Indenture.
(d) covenant exceed $1.0 million. Any Net Available Cash from an Asset Dispositions Disposition that is not applied or invested or committed to be applied or invested as provided and within the time period set forth in Section 4.08(cthe first sentence of this paragraph (a) will be deemed to constitute “"Excess Proceeds.” On " For the 366th day purposes of this SECTION 3.6 and for no other purpose, the following will be deemed to be cash: (x) the assumption by the transferee of Indebtedness (other than Subordinated Obligations) of the Company or the 546th day, in the case Indebtedness of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors Restricted Subsidiary of the Issuer pursuant to clause (2) Company and the release of the Company or (3) of Section 4.08(c)) after the later of (A) the date of such Restricted Subsidiary from all liability on such Indebtedness or Indebtedness in connection with such Asset Disposition (in which case the Company will, without further action, be deemed to have applied such deemed cash amount in accordance with clause (i) of the preceding paragraph) and (By) securities received by the receipt Company or any Restricted Subsidiary of the Company from the transferee that are promptly converted by the Company or such Net Available Cash, if Restricted Subsidiary into cash.
(b) When the aggregate amount of Excess Proceeds exceeds $100 million5.0 million (with lesser amounts to be carried forward for purposes of determining whether an Asset Sale Offer (as defined) is required with respect to the Excess Proceeds from any subsequent Asset Disposition), the Issuer Company will be required within ten (10) Business Days thereof to make an offer to purchase (“Asset Disposition Offer”an "ASSET SALE OFFER") to within ten days of such time from all holders Holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, Securities in accordance with the procedures set forth in this Indenture or SECTION 5.10 the agreements governing the Pari Passu Indebtedness, maximum principal amount (expressed as applicable, and in the case of the Notes, in minimum denominations a multiple of $200,000 and in integral multiples 1,000) of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period Securities that may be required by this Indenture purchased with respect to all or a part such Excess Proceeds. If the aggregate purchase price of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly Securities tendered and not properly withdrawn pursuant to an the Asset Disposition Sale Offer is less than the Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds will be available to the Company to fund other corporate purposes not otherwise prohibited by this Indenture.
(or, in the case of an Advance Offer, the Advance Portionc) for general corporate purposesThe Company will comply, to the extent not prohibited by applicable, with the other covenants contained in this Indenture. If the aggregate principal amount requirements of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the repurchase of Securities pursuant to an Asset Disposition Sale Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it made pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes SECTION 3.6 and Pari Passu Indebtedness validly tendered in response to the Asset Disposition OfferSECTION 5.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 2 contracts
Sources: Indenture (Bertuccis of White Marsh Inc), Indenture (Ne Restaurant Co Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the Issuer, ) of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis basis) received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents;
(c3) After the receipt Issuer or any of its Restricted Subsidiaries will apply 100% of the Net Available Cash from an any Asset Disposition, :
(i) to the extent the Issuer or a any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects (or indirectly is required by the terms of any Indebtedness), (at A) to prepay, repay or purchase any Indebtedness of a Non-Guarantor Subsidiary or any Senior-Priority Obligations, including Indebtedness under the option of Specified Loan Agreements or any Refinancing Indebtedness in respect thereof (in each case, other than Indebtedness owed to the Issuer or such any Restricted Subsidiary):
(1) within 365 450 days from the later of (A1) the date of such Asset Disposition and (B2) the receipt of such Net Available Cash (i) to prepayas applicable, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtednessthe “Asset Disposition Proceeds Application Period”); provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; or (iiB) unless included in Section 4.08(c)(1)(B)(i), to prepay, repayrepay or purchase Senior Indebtedness; provided that, purchase or redeem any Pari Passu Indebtedness of to the extent the Issuer prepays, repays or any Guarantorpurchases Senior Indebtedness pursuant to this clause (B), the Issuer 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 a price of no more than or above 100% of the principal amount of such Pari Passu Indebtedness plus accrued and unpaid interest thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to the date of such prepayment, repayment, all Holders to purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases their Notes at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to plus the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notesaccrued but unpaid interest, plus accrued and unpaid interest toif any, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal that would otherwise be prepaid; provided further, that, in addition to the proportion that (x) foregoing, the total aggregate principal amount Net Available Cash from an Asset Disposition of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) Collateral may not be applied to prepay, repay, repay or purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through openSenior-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07Priority Obligations;
(2ii) to the extent the Issuer or such any Restricted Subsidiary electsSubsidiary, as the case may be, elects to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available CashProceeds Application Period; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or shall be treated as a permitted application of Net Available Cash from the date of such commitment approved by with the Board of Directors of the Issuer good faith expectation that is executed or approved within such time Net Available Cash will be applied to satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Available Cash is applied in connection therewith, the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided, further, that if any Second Commitment is later cancelled or terminated for any reason before such Net Available Cash is applied, then such Net Available Cash shall constitute Excess Proceeds; or
(3iii) to make a capital expenditure within 365 days from any combination of the later of foregoing; and
(A4) the date of if such Asset Disposition involves the disposition of Collateral, the Issuer or such Subsidiary has complied with the applicable provisions of this Indenture and (B) the receipt of such Net Available CashCollateral Documents; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3Section 3.5(a)(3)(i) or (4) of Section 4.08(cii), the Issuer and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest use such Net Available Cash in any manner not prohibited by this Indenture.
(db) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c3.5(a) will shall be deemed to constitute “Excess Proceeds.” under this Indenture. On the 366th 451st day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such an Asset Disposition and (B) or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds under this Indenture exceeds $100 million200,000,000, the Issuer will be required shall within ten twenty (1020) Business Days thereof be required to make an offer (“Asset Disposition Offer”) to all holders of the Notes Holders and, to the extent the Issuer or a Guarantor elects, or to the Issuer or a Guarantor is required by the terms holders of any other outstanding Pari Passu Senior-Priority Obligations (and only to the extent the Excess Proceeds are greater than the outstanding Senior-Priority Obligations, other Senior Indebtedness), to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness Senior-Priority Obligations (and, if applicable, Senior Indebtedness) to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu any such Senior-Priority Obligations (and, if applicable, Senior Indebtedness), in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu any such Senior-Priority Obligations (and, if applicable, Senior Indebtedness), as applicable, and in the case of and, with respect to the Notes, in minimum denominations of $200,000 2,000 and in integral multiples of $1,000 in excess thereof. No The Issuer shall deliver notice of such purchase Asset Disposition Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder at the address of such Holder appearing in part shall reduce the principal amount at maturity security register or otherwise in accordance with the applicable procedures of DTC, describing the transaction or transactions that constitute the Asset Disposition and offering to repurchase the Notes held for the specified purchase price on the date specified in the notice, which date shall be no earlier than 15 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by any holder to below $200,000this Indenture and described in such notice. The Issuer may satisfy the foregoing obligations obligation with respect to any such Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture expiration of the Asset Disposition Proceeds Application Period (the “Advance Offer”) with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”)Section 3.5.
(e) [Reserved].
(fc) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness any such Senior-Priority Obligations (and, if applicable, Senior Indebtedness) so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent any purpose not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness Senior-Priority Obligations surrendered by holders or lenderslenders thereof, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness any such Senior-Priority Obligations to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness Senior-Priority Obligations; provided that no Notes or other Senior-Priority Obligations shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)and purchased in an unauthorized denomination. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall will be reset at zerozero (regardless of whether there are any remaining Excess Proceeds upon such completion), and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds. Additionally, upon consummation or expiration of any Advance Offer, any remaining Net Available Cash shall not be deemed Excess Proceeds and the Issuer may use such Net Available Cash for any purpose not otherwise prohibited under this Indenture.
(gd) 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 in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in U.S. dollars that is actually received by the IssuerIssuer upon converting such portion into U.S. dollars.
(he) The 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 Offerby a Foreign Subsidiary (a “Foreign Disposition”) is prohibited or delayed by applicable local law, in so far as it relates or would give rise to a violation of a third-party agreement of the Issuer or any Restricted Subsidiary, from being repatriated to the NotesUnited States, the portion of such Net Available Cash so affected will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time be required to comply be applied in compliance with this Section 14(e) of 3.5, and such amounts may be retained by the Exchange Act and any other applicable securities laws Foreign Subsidiary so long, but only so long, as the applicable local law or regulations in connection with third-party agreement will not permit repatriation to the Asset Disposition Offer United States (the “Asset Disposition Offer Period”Issuer hereby agreeing to use reasonable efforts (as determined in the Issuer’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, to promptly take all actions reasonably required by the applicable local law or third-party agreement to permit such repatriation). No , 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 or third-party agreement, 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) in compliance with this Section 3.5 and (ii) to the termination extent that the Issuer has determined in good faith that repatriation of any of or all the Asset Net Available Cash of any Foreign Disposition Offer Period would have an adverse Tax cost consequence with respect to such Net Available Cash (which for the “Asset Disposition Purchase Date”avoidance of doubt, includes, but is not limited to, any prepayment whereby doing so the Issuer, any Restricted Subsidiary or any of their respective affiliates 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.
(f) For the purposes of Section 3.5(a)(2), the following will be deemed to be cash:
(i) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Issuer will purchase or a Restricted Subsidiary (other than Subordinated Indebtedness of the principal amount Issuer or a Guarantor) and the release of Notes andthe Issuer or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition;
(ii) securities, notes or other obligations received by the Issuer or any Restricted Subsidiary of the Issuer from the transferee that are converted by the Issuer or such Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Disposition;
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent it electsthat the Issuer and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition;
(iv) consideration consisting of Indebtedness of the Issuer (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Issuer or any Restricted Subsidiary; and
(v) any Designated Non-Cash Consideration received by the Issuer or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, Pari Passu Indebtedness required to be purchased by it taken together with all other Designated Non-Cash Consideration received pursuant to this Section 4.08 3.5 that is at that time outstanding, not to exceed the greater of $650,000,000 and 3.0% of Total Assets (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).
(g) Upon the commencement of an Asset Disposition Offer Amount”) orOffer, if less than the Asset Disposition Offer Amount has been so validly tenderedIssuer shall send, or cause to be sent, electronically or by first class mail, a notice to the Trustee and to each Holder at its registered address, in accordance with the applicable procedures of DTC. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes and Pari Passu Indebtedness validly tendered in response pursuant to the Asset Disposition Offer.
(i) On or before . Any Asset Disposition Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Disposition Purchase DateOffer, shall state:
(1) that the Issuer willAsset Disposition Offer is being made pursuant to this Section 3.5 and that, to the extent lawful, accept all Notes tendered and not withdrawn shall be accepted for payment, on a pro rata basis to payment (unless prorated);
(2) the extent necessaryAsset Disposition payment amount, the Asset Disposition Offer Amount of offered price, and the date on which Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness so validly tendered and accepted for payment shall be purchased, which date shall be at least 15 days and not properly withdrawn later than 60 days from the date such notices is mailed (the “Asset Sale Payment Date”);
(3) that any Notes not tendered or accepted for payment will remain outstanding and continue to accrue interest in accordance with the terms thereof;
(4) that, unless the Issuer defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer, or if less than Offer shall cease to accrue interest on and after the Asset Sale Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to any Asset Disposition Offer Amount has been validly shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed (subject to any contrary procedures of DTC with respect to Global Notes), 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 Payment Date;
(6) that Holders will be entitled to withdraw their tendered and not properly withdrawn, all Notes and Pari Passu Indebtedness so validly tendered and their election to require the Issuer to purchase such Notes; provided that the Paying Agent receives, not properly withdrawn andlater than the close of business on the second Business Day prior to the expiration date of the Asset Sale Payment Date, in a telegram, facsimile transmission or letter setting forth the case name of the Holder of the Notes, in minimum denominations the principal amount of $200,000 Notes tendered for purchase, and in integral multiples of $1,000 in excess thereof.a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(j7) The Issuer will deliver to that if the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.aggregate princip
Appears in 2 contracts
Sources: Indenture (Community Health Systems Inc), Indenture (Community Health Systems Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Priority Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any GuarantorIssuer, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 2 contracts
Sources: Indenture (Altice USA, Inc.), Indenture (Altice USA, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1i) the Issuer 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 (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition Disposition, as such fair market value may be determined (includingand shall be determined, for to the avoidance of doubt, if extent such Asset Disposition is a Permitted or any series of related Asset SwapDispositions involves aggregate consideration in excess of $25.0 million) in good faith by the Board of Directors, whose determination shall be conclusive (including as to the value of all non-cash consideration); and;
(2ii) in the case of any such Asset Disposition, Disposition (or series of related Asset Dispositions (except to the extent the Asset Disposition is Dispositions) having a Permitted Asset Swap)fair market value of $25.0 million or more, at least 75% of the consideration from such therefor (excluding, in the case of an Asset Disposition (or such series of related Asset Dispositions (excluding Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than that are not Indebtedness), together with all other Asset Dispositions since ) received by the Issue Date Company or such Restricted Subsidiary is in the form of cash; and
(except iii) an amount equal to 100% of the extent any Net Available Cash from such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received is applied by the Issuer Company (or such any Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.) as follows:
(cA) After first, either (x) to the receipt extent the Company elects (or is required by the terms of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of any Bank Indebtedness, (A2) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu secured Indebtedness of the Issuer Company or any Guarantor, 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, purchase Subsidiary Guarantor or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii3) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness that is secured on assets or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness (in each case other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer Company or any a Restricted Subsidiary); (iv) to purchase within 360 days after the Notes through open-market purchases at a price equal to or higher than 100% later of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, the date of purchase (subject to such Asset Disposition and the right date of Holders receipt of record on the relevant record date to receive interest due on the relevant interest payment date) such Net Available Cash, or (v) to redeem the Notes as described under Section 3.07;
(2y) to the extent the Issuer Company or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 360 days from the later of (i) the date of such Asset Disposition and (ii) the date of receipt of such Net Available Cash, or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 360 days to complete, the period of time necessary to complete such project;
(B) second, if the balance of such Net Available Cash after application in accordance with clause (A) above (and after the expiration of the maximum period for such application permitted by clause (A)) exceeds $20.0 million, (such balance, the “Excess Proceeds”), to the extent of such Excess Proceeds, to make an offer to purchase Notes and (to the extent the Company or such Restricted Subsidiary elects, or is required by the terms thereof) to purchase, redeem or repay any other unsubordinated indebtedness of the Company or a Restricted Subsidiary, pursuant and subject to Section 41l(b) and Section 41l(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 such reinvestment in Additional Assets made prepayment, repayment or purchase of Indebtedness pursuant to a definitive binding agreement clause (A)(x) or (B) above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 411, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 411 except to the extent that the aggregate Net Available Cash from all Asset Dispositions or equivalent amount that is not applied in accordance with this Section 411 exceeds $50.0 million. If the aggregate principal amount of Notes or other Indebtedness of the Company or a commitment approved by Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to clause (B) above exceeds the Board of Directors Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other unsubordinated Indebtedness of the Issuer that is executed Company or approved within such time will satisfy this requirementa Restricted Subsidiary, so long as such investment or commitment to invest is consummated within 180 days with the portion of the Excess Proceeds payable in respect of such 365th day;
Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding principal amount of such Notes and the denominator of which is the sum of the outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. For the purposes of clause (ii) of paragraph (a) above, the following are deemed to be cash: (1) Temporary Cash Investments and Cash Equivalents, (2) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (3) to make Indebtedness of any Restricted Subsidiary that is no longer a capital expenditure within 365 days from the later of (A) the date Restricted Subsidiary as a result of such Asset Disposition Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days, (5) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary and (B6) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this covenant that is at that time outstanding, not to exceed the greater of (x) $50.0 million or (y) 1.25% of Total Assets at the time of the receipt of such Designated Noncash Consideration (with the Fair Market Value being measured at the time received and without giving effect to subsequent changes in value).
(b) In the event of an Asset Disposition that requires the purchase of Notes pursuant to Section 41l(a)(iii)(B), the Company will be required to purchase Notes tendered pursuant to an offer by the Company for the Notes (the “Offer”) at a purchase price of 100% of their principal amount plus accrued and unpaid interest to the Purchase Date in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 41l(c). If the aggregate purchase price of the Notes tendered pursuant to the offer is less than the Net Available Cash; providedCash allotted to the purchase of Notes, however, that any such capital expenditure made the remaining Net Available Cash will be available to the Company for use in accordance with Section 41l(a)(iii)(B) (to repay other Indebtedness of the Company or a Restricted Subsidiary) or Section 41l(a)(iii)(C). The Company shall not be required to make an offer for Notes pursuant to a definitive binding agreement or a commitment approved by this Section 411 if the Board of Directors Net Available Cash available therefor (after application of the Issuer that proceeds as provided in Section 41l(a)(iii)(A)) is executed or approved within such time less than $50.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). No Note will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; orbe repurchased in part if less than the Minimum Denomination in original principal amount.
(4c) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending Pending the final application of any Net Proceeds pursuant to this Section 411, such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may be applied to temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount provisions of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection conflict with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms provisions of this Section 4411, the Company may comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 411 by virtue thereof.
Appears in 2 contracts
Sources: Indenture (Adesa California, LLC), Indenture (Adesa California, LLC)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition (other than any Asset Disposition pursuant to or in connection with the Transactions) unless:
(1i) the Issuer 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 Fair Market Value (such fair market value to be determined on as of the date of contractually agreeing to a legally binding commitment for such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the Issuer, Disposition was entered into) of the shares and assets subject to such Asset Disposition;
(ii) in the case of any Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and
(2) in any such Asset Disposition, or series of related Asset Dispositions Dispositions) having a Fair Market Value (except to as of the extent the date a legally binding commitment for such Asset Disposition is a Permitted Asset Swap)was entered into) of $30.0 million or more, at least 7575.0% of the consideration from such therefor (excluding, in the case of an Asset Disposition (or such series of related Asset Dispositions (excluding Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than that are not Indebtedness) received by the Company or such Restricted Subsidiary is in the form of cash; and
(iii) an amount equal to 100.0% (as may be adjusted pursuant to clause (3) of the last proviso to this clause (iii), together with all other Asset Dispositions since ) of the Issue Date (except to the extent any Net Available Cash from such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received is applied by the Issuer Company (or such any Restricted Subsidiary, as the case may be) as follows:
(A) first, either (x) to the extent the Company or such Restricted Subsidiary elects, or is required by the terms of any Credit Facility Indebtedness that is secured by a Lien, any Senior Indebtedness of the Company or any Subsidiary Guarantor that is secured by a Lien or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, to prepay, repay or purchase any such Indebtedness or Obligations in respect thereof or (in the form case of cashletters of credit, Cash Equivalents bankers’ acceptances or Temporary Cash Investments.
other similar instruments) cash collateralize any such Indebtedness or Obligations in respect thereof (c) After in each case, other than Indebtedness owed to the receipt of Net Available Cash from an Asset Disposition, the Issuer Company or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from 12 months after the later of (A) the date of such Asset Disposition and the date of receipt of such Net Available Cash, or (By) to the extent the Company or such Restricted Subsidiary elects, to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to the Net Available Cash received by the Company or another Restricted Subsidiary) within 12 months from the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash (ior, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than 12 months to complete, the period of time necessary to complete such project) (provided that, in the case of this clause (y), a binding commitment or letter of intent shall be treated as a permitted application of the Net Available Cash from the date of such commitment or letter of intent until the 18-month anniversary of the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash (such 18-month anniversary, the “18-Month Anniversary”) (so long as the Company or such Restricted Subsidiary enters into such commitment or letter of intent with the good faith expectation that such Net Available Cash will be applied to satisfy such commitment or letter of intent within such period and such Net Available Cash is actually applied in such manner); provided, further, that in the event such binding commitment or letter of intent is later canceled or terminated for any reason on or after the 12-month anniversary of the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash but before such Net Available Cash is so applied, then such Net Available Cash shall constitute Excess Proceeds pursuant to clause (B) below unless the Company or such Restricted Subsidiary enters into another binding commitment (a “Second Commitment”) within 6 months of such cancellation or termination of the prior binding commitment (but in any event no later than the 18-Month Anniversary); provided, further, that the Company or such Restricted Subsidiary may only enter into a Second Commitment under the foregoing provision one time with respect to each Asset Disposition, and to the extent such Second Commitment is later canceled or terminated for any reason before such Net Available Cash is applied or such Net Available Cash is not applied within 6 months of such Second Commitment, then such Net Available Cash shall constitute Excess Proceeds pursuant to clause (B) below);
(B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above (such balance, the “Excess Proceeds”), to make an offer to purchase Notes and (to the extent the Company or such Restricted Subsidiary elects, or is required by the terms thereof) to prepaypurchase, repayredeem or repay any other Senior Indebtedness of the Company or a Restricted Subsidiary, purchase pursuant and subject to the conditions of this Section 411 and the agreements governing such other Senior Indebtedness; and
(C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) above (the amount of such balance, “Declined Excess Proceeds”), 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 redeem other acquisition or retirement of any Indebtedness incurred under Section 4.04(b)(1) Subordinated Obligations or any Guarantor Indebtednessthe making of other Restricted Payments); provided, however, that, that (1) in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i)clause (A)(x) or (B) above, the Issuer Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; (ii2) unless included the Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (A)(y) above with respect to such Asset Disposition; and (3) the foregoing percentage in this clause (iii) shall be reduced to 50% if the Consolidated Net Leverage Ratio at the time of such Asset Disposition (or, at the Company’s option, on the date a legally binding commitment for such Asset Disposition was entered into) would be equal to or less than 3.00:1.00 after giving pro forma effect to any application of such Net Available Cash as set forth herein (any Net Available Cash in respect of Asset Dispositions not required to be applied in accordance with this clause (iii) as a result of the application of this clause (3) shall collectively constitute “Net Leverage Excess Proceeds”). Notwithstanding the foregoing Section 4.08(c)(1)(B)(i411(a)(iii), to prepaythe extent that repatriating or transferring any or all of the Net Available Cash from any Asset Disposition by any Restricted Subsidiary that is not a Subsidiary Guarantor (w) could result in adverse tax consequences to the Company or any of its Subsidiaries, repay(x) is prohibited or delayed by applicable local law, purchase (y) could reasonably be expected to give rise to or redeem result in (A) any Pari Passu violation of applicable law, (B) any liability (criminal, civil, administrative or other) for any of the officers, directors or equityholders of the Company, any Restricted Subsidiary or any parent, (C) any violation of the provisions of any joint venture or other material agreement governing or binding upon the Company or any Restricted Subsidiary or (D) any material risk of any such violation or liability referred to in clauses (A), (B) and (C) or (z) could reasonably be expected to give rise to or result in any cost, expense, liability or obligation (including any tax) other than routine and immaterial out-of-pocket expenses (in the case of the foregoing clauses (w), (x), (y) and (z), as determined by the Company in good faith, which determination shall be conclusive), the portion of such Net Available Cash so affected will not be required to be applied in compliance with the foregoing provisions of this Section 411, and such amounts may be retained by the Company or any Restricted Subsidiary or invested in, distributed to or otherwise transferred to any other Subsidiary; provided that, in the case of the foregoing clause (y), the Company shall take commercially reasonable efforts to and to cause the applicable Restricted Subsidiary to, take all actions reasonably required by the applicable local law, the applicable organizational impediments or other impediment to permit such repatriation or transfer, and if such repatriation or transfer of any of such affected Net Available Cash can be achieved, such repatriation or transfer will be promptly effected and such repatriated or transferred Net Available Cash will be applied (whether or not repatriation or transfer actually occurs) in compliance with the foregoing provisions of this Section 411. The time periods set forth in this Section 411 shall not start until such time as the Net Available Cash may be repatriated or transferred whether or not such repatriation or transfer actually occurs. Notwithstanding the foregoing provisions of this Section 411, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 411 except to the extent that the aggregate Net Available Cash from all Asset Dispositions that is not applied in accordance with this Section 411 (excluding all Net Leverage Excess Proceeds) exceeds $20.0 million. If the aggregate principal amount of Notes and/or other Indebtedness of the Issuer Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to clause (B) above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding principal amount of such Notes and the denominator of which is the sum of the outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. For the purposes of Section 411(a)(ii), the following are deemed to be cash: (1) Temporary Cash Investments and Cash Equivalents, (2) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Guarantor, at a price Restricted Subsidiary and the release of no more than 100% the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Pari Passu Indebtedness in connection with such Asset Disposition, (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days (to the extent of the cash received), (5) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary, (6) Additional Assets and (7) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause, not to exceed an aggregate amount at any time outstanding equal to the greater of $75.0 million and 19.0% of Consolidated Tangible Assets as of the date a legally binding commitment for such Asset Disposition was entered into (with the Fair Market Value of each item of Designated Noncash Consideration being measured as of the date a legally binding commitment for such disposition (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in value).
(b) In the event of an Asset Disposition that requires the purchase of Notes pursuant to Section 411(a)(iii)(B), the Company will be required to purchase Notes tendered pursuant to an offer by the Company for the Notes (the “Offer”) at a purchase price of 100% of their principal amount plus accrued and unpaid interest to interest, if any, to, but not including, the date of such prepaymentpurchase in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 411(c). If the aggregate purchase price of the Notes tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of Notes, repayment, purchase the remaining Net Available Cash will be available to the Company and the Restricted Subsidiaries for use in accordance with Section 411(a)(iii)(B) (to repay other Indebtedness of the Company or redemption; provided that the Issuer a Restricted Subsidiary) or such Guarantor, as applicable, Section 411(a)(iii)(C). The Company shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt not be required to make an Offer for Notes pursuant to this clause (ii) only Section 411 if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% Net Available Cash (excluding all Net Leverage Excess Proceeds) available therefor (after application of the proceeds as provided in Section 411(a)(iii)(A)) is less than $20.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). No Note will be purchased in part if less than the Minimum Denomination in aggregate principal amount thereofof such Note would be left Outstanding.
(c) The Company shall, not later than 45 days after the Company becomes obligated to make an Offer pursuant to this Section 411, mail or makes an offer cause to be mailed or deliver electronically or cause to be delivered electronically (if such Notes are held by any depositary) a notice to each Holder with a copy to the Holders Trustee 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 their a portion of such Holder’s Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notesthereof, plus accrued and unpaid interest interest, if any, to, but not including, the date of purchase (subject to the right of Holders of record on the relevant record date Regular Record Date to receive interest due on the relevant interest payment dateInterest Payment Date falling prior to or on the purchase date pursuant to Section 307); (2) forthe purchase date (which shall be no earlier than 10 days nor later than 60 days from the date such notice is mailed); (3) the instructions determined by the Company, consistent with this Section 411, that a Holder must follow in each caseorder to have its Notes purchased; and (4) the amount of the Offer. If, an upon the expiration of the period for which the Offer remains open, the aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) Company shall be allocated among select the Notes and Pari Passu Indebtedness 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 the aggregate principal amount Minimum Denomination or integral multiples of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated $1,000 in dollars, such Indebtedness excess thereof shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined belowpurchased). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(gd) To The Company will comply, to the extent that any portion applicable, with the requirements 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.connection
Appears in 2 contracts
Sources: Indenture (Frontdoor, Inc.), Indenture (Servicemaster Global Holdings Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company and any Permitted Affiliate Parent will not, and will not permit any of its the Restricted Subsidiaries to, to make any Asset Disposition unless:
(1) the Issuer Company, such Permitted Affiliate Parent 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), ) (including as determined in good faith by an Officer or to the Board value of Directors of the Issuer, all non-cash consideration) of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); andDisposition;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent unless the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company, such Permitted Affiliate Parent or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) is reinvested or applied to prepay the receipt of such Net Available Cash (i) to prepay, repay, purchase Loans or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Other Applicable Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount in accordance with Section 2.05(b)(i) of Notes at least equal this Agreement.
(b) For the purposes of this Section 4.10, the following will be deemed to the proportion that be cash:
(x1) the total aggregate principal amount assumption by the transferee of Notes outstanding bears to Indebtedness (yother than Subordinated Obligations) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase any Loan Party or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor Loan Party and the release of such Loan Party or any such Restricted Subsidiary from all liability on such Indebtedness that is secured on assets in connection with such Asset Disposition (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on which case the relevant record date Borrower will, without further action, be deemed to receive interest due on the relevant interest payment datehave applied such deemed cash to Indebtedness in accordance with Section 2.05(b)(i) or (v) to redeem the Notes as described under Section 3.07of this Agreement);
(2) to securities, notes or other obligations received by the extent Company, a Permitted Affiliate Parent or any Restricted Subsidiary from the Issuer transferee that are convertible by the Company, such Permitted Affiliate Parent or such Restricted Subsidiary elects, to invest in into cash or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by Equivalents within 180 days following the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date closing of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th dayDisposition;
(3) to make Indebtedness of any Restricted Subsidiary that is no longer a capital expenditure within 365 days from the later of (A) the date Restricted Subsidiary as a result of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes andDisposition, to the extent that the Issuer or a Guarantor electsCompany, or the Issuer or a Guarantor is required by the terms any Permitted Affiliate Parent and each other Restricted Subsidiary are released from any guarantee of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% payment of the principal amount of such Notes and 100Indebtedness in connection with such Asset Disposition;
(4) consideration consisting of Indebtedness of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary;
(5) any Designated Non-Cash Consideration received by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value not to exceed 25.0% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, consideration from such Asset Disposition (excluding any consideration received from such Asset Disposition in accordance with Section 4.10(b)(1) to Section 4.10(b)(4)) (with the procedures set forth in this Indenture fair market value of each item of Designated Non-Cash Consideration being measured at the time received or, at the option of the Company or any Permitted Affiliate Parent, at the agreements governing the Pari Passu Indebtedness, as applicabletime contractually agreeing to such Asset Disposition, and without giving effect to subsequent changes in the case of the Notes, value);
(6) in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect addition to any Net Available Designated Non-Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn Consideration received pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance PortionSection 4.10(b)(5), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Designated Non-Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually Consideration received by the Issuer.
(h) The Company, a Permitted Affiliate Parent or any Restricted Subsidiary in such Asset Disposition OfferDispositions having an aggregate fair market value, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply taken together with Section 14(e) of the Exchange Act and any all other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it Designated Non-Cash Consideration received pursuant to this Section 4.08 4.10(b)(6) that is at that time outstanding, not to exceed the greater of $250.0 million and 5.0% of Total Assets (with the “Asset Disposition Offer Amount”) fair market value of each item of Designated Non-Cash Consideration being measured at the time received or, if less than at the option of the Company or any Permitted Affiliate Parent, at the time contractually agreeing to such Asset Disposition Offer Amount has been so validly tenderedDisposition, all Notes and Pari Passu Indebtedness validly tendered without giving effect to subsequent changes in response to the Asset Disposition Offer.value);
(i7) On consideration consisting of securities or before obligations issued, insured or unconditionally guaranteed by a government (or any agency or instrumentality thereof) of a country where the Asset Disposition Purchase DateCompany, a Permitted Affiliate Parent or any Restricted Subsidiary is organized or located; and
(8) any Capital Stock or assets of the Issuer will, kind referred to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case definition of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof“Additional Assets”.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 2 contracts
Sources: Additional Facility Joinder Agreement (Liberty Latin America Ltd.), Extension Amendment (Liberty Latin America Ltd.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
unless (1i) either (x) in the Issuer case of any Asset Disposition, 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 value, as may be determined (such and shall be determined, to the extent an Asset Disposition involves a fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined greater than $10,000,000) in good faith by an Officer or the Board of Directors, whose determination will be conclusive and evidenced by a resolution of the Board of Directors (including as to the value of the Issuerall non-cash consideration), of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and
(2) in any such Asset Disposition, or series (y) in the case of related Asset Dispositions (except a Financing Disposition, the Board of Directors shall have determined in good faith, which determination will be conclusive and evidenced by a resolution of the Board of Directors, that such Financing Disposition is economically fair and reasonable to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such Restricted Subsidiary, as the case may be, and in the best interest of the Company or such Restricted Subsidiary and its respective creditors, (ii) in the case of any Asset Disposition having a fair market value of $10,000,000 or more, at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents (other than with respect to an Asset Disposition consisting of an exchange of equipment for use in related lines of business, a Financing Disposition or Temporary Cash Investments.
a Fiskeby Transaction), and (ciii) After an amount equal to 100% of the receipt of Net Available Cash from an such Asset Disposition, Disposition (other than any Financing Disposition relating to any Receivables Financing) is applied by the Issuer Company (or a such Restricted Subsidiary, as the case may be) as follows: (A) First, may apply such Net Available Cash directly to the extent the Company elects (or indirectly is required by the terms of any Senior Indebtedness (at other than the option 1997 Notes or the Securities) or Indebtedness (other than Preferred Stock) of a Restricted Subsidiary), to prepay, repay or purchase Senior Indebtedness (other than the Issuer 1997 Notes or the Securities) or such Indebtedness (in each case other than Indebtedness owed to the Company or a Restricted Subsidiary):) within 365 days
(1) within 365 days from to make a Note Offer pursuant to and subject to the later of (Aconditions set forth in Sections 4.06(b) the date of such Asset Disposition and 4.06(c), and (B2) otherwise in accordance with Section 4.06 of the receipt of such Net Available Cash (i) to prepay1997 Notes Indenture; PROVIDED, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, HOWEVER that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i)clause (A) or (C) above, the Issuer Company or such Restricted Subsidiary will shall retire such Indebtedness and will shall cause the related loan commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaidrepaid or purchased. Notwithstanding the foregoing provisions of this Section, purchased or redeemed; the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section (less the aggregate amount of Net Available Cash from Asset Dispositions applied in accordance with Section 4.06 of the 1997 Notes Indenture prior to the Issue Date) exceeds $25,000,000 since the 1997 Notes Issue Date. For the purposes of clause (ii) unless included in of this Section 4.08(c)(1)(B)(i4.06(a), the following are deemed to prepay, repay, purchase or redeem any Pari Passu be cash: (w) the assumption of Indebtedness of the Issuer Company (other than Disqualified Stock of the Company) or any GuarantorRestricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition, (x) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary is released from any Guarantee of such Indebtedness in connection with such Asset Disposition, (y) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents, and (z) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary.
(b) In the event of an Asset Disposition that requires the purchase of Securities pursuant to Section 4.06(a)(iii)(C), the Company will first be required to purchase Securities tendered pursuant to an offer by the Company for the Securities (the "Note Offer") at a purchase price of no more than equal to 100% of the their principal amount plus accrued and unpaid interest to the Purchase Date in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 4.06(d). If the aggregate purchase price of Securities tendered pursuant to the Note Offer is less than the Net Available Cash allotted to the purchase of the Securities, the Company may apply the remaining Net Available Cash in any manner. After repayment of all the Securities tendered pursuant to the Note Offer, the remaining amount of Net Available Cash, if any, shall be reset at zero. The Company shall not be required to make a Note Offer for Securities pursuant to this Section if the Net Available Cash available therefor (after application of the proceeds as provided in clauses (A) and (B) of Section 4.06(a)(iii)) is less than $25,000,000 (which lesser amount shall be carried forward for purposes of determining whether a Note Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(c) In the event that the Company determines that it will be required to make a 1997 Notes Offer to purchase any 1997 Notes pursuant to Section 4.06(a)(iii)(C) of the 1997 Notes Indenture, the Company shall also be required to make a Note Offer and purchase Securities tendered pursuant to such Pari Passu Indebtedness Note Offer, as contemplated by Section 4.06(a)(iii)(A) of the 1997 Notes Indenture, in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 4.06(d) of this Indenture. The Board of Directors shall in good faith determine whether or not the Company will be so required to make a 1997 Notes Offer, and the related Pro Rata Amount, prior to the date that is 305 days after the relevant Asset Disposition, taking into account the then expected application of then outstanding amounts of 1997 Net Available Cash (which determination shall be conclusive). Such Note Offer and purchase of Securities shall be for their total outstanding principal amount (or, if less, the Pro Rata Amount) plus accrued and unpaid interest to the date of purchase. The Company shall make such prepayment, repayment, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest Note Offer prior to, but not includingand purchase the Securities tendered pursuant thereto on or prior to, the date of purchase (subject to the right of Holders of record on that is 365 days after the relevant record date to receive interest due on the relevant interest payment date) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) Asset Disposition to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required necessary to comply with the provisions of Section 14(e) 4.06 of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of 1997 Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition OfferIndenture.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 2 contracts
Sources: Indenture (Riverwood Holding Inc), Indenture (Riverwood Holding Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1i) the Issuer 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 (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition Disposition, as such fair market value may be determined (includingand shall be determined, for to the avoidance of doubt, if extent such Asset Disposition is a Permitted or any series of related Asset SwapDispositions involves aggregate consideration in excess of $15.0 million) in good faith by the Board of Directors, whose determination shall be conclusive (including as to the value of all noncash consideration); and,
(2ii) in the case of any such Asset Disposition, Disposition (or series of related Asset Dispositions (except to the extent the Asset Disposition is Dispositions) having a Permitted Asset Swap)fair market value of $15.0 million or more, at least 75% of the consideration from such therefor (excluding, in the case of an Asset Disposition (or such series of related Asset Dispositions (excluding Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than that are not Indebtedness)) received by the Company or such Restricted Subsidiary is in the form of cash, together with all other Asset Dispositions since and
(iii) an amount equal to 100% of the Issue Date (except to the extent any Net Available Cash from such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received is applied by the Issuer Company (or such any Restricted Subsidiary, as the case may be) in accordance with paragraph (b) or (c) below, is in the form of cash, Cash Equivalents or Temporary Cash Investmentsas applicable.
(cb) After To the receipt extent that such Asset Disposition is an Asset Disposition of any assets that do not constitute ABL Priority Collateral (“Non-ABL Assets”), an amount equal to 100% of the Net Available Cash from an such Asset Disposition, Disposition is applied by the Issuer Company (or a any Restricted Subsidiary, as the case may be) as follows:
(A) first, may apply either (x) to the extent such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days is not from the later of (A) the date of such an Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal Collateral, and to the principal amount so prepaidextent the Company elects (or is required by the terms of any Credit Facility Indebtedness, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Senior Indebtedness of the Issuer Company or any Guarantor, 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, purchase Subsidiary Guarantor or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness that is secured on assets or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness (in each case other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer Company or any a Restricted Subsidiary); (iv) to purchase within 365 days after the Notes through open-market purchases at a price equal to or higher than 100% later of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, the date of purchase (subject to such Asset Disposition and the right date of Holders receipt of record on the relevant record date to receive interest due on the relevant interest payment date) such Net Available Cash, or (v) to redeem the Notes as described under Section 3.07;
(2y) to the extent the Issuer Company or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the date of receipt of such Net Available Cash, or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 365 days to complete, the period of time necessary to complete such project;
(B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above (such balance, the “Excess Proceeds”), to make an offer to purchase Notes and (to the extent the Company or such Restricted Subsidiary elects, or is required by the terms thereof) to purchase, redeem or repay any Additional Obligations of the Company or a Restricted Subsidiary, or any other Indebtedness with Pari Passu Lien Priority with respect to the Note Priority Collateral, pursuant and subject to Section 411(d) and Section 411(e) 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 Subsidiary 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 411(b), the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 411(b) except to the extent that the aggregate Net Available Cash from all Asset Dispositions subject to this Section 411(b) or equivalent amount that is not applied in accordance with this Section 411(b) exceeds $15.0 million. If the aggregate principal amount of Notes and/or other Indebtedness of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to clause (B) above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding principal amount of such Notes and the denominator of which is the sum of the outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn.
(c) To the extent that such Asset Disposition is an Asset Disposition of ABL Priority Collateral, an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or any Restricted Subsidiary, as the case may be) as follows:
(A) first, either (x) to the extent the Company elects (or is required by the terms of any Indebtedness constituting ABL Obligations, including by the ABL Credit Agreement), to prepay, repay or purchase any such reinvestment Indebtedness or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness within 365 days after the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash, or (y) to the extent the Company or such Restricted Subsidiary elects, to invest in Additional Assets made pursuant (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to a definitive binding agreement or a commitment approved Net Available Cash received by the Board of Directors of the Issuer that is executed Company or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3another Restricted Subsidiary) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, or, if such investment in Additional Assets is a project authorized by the aggregate amount Board of Excess Proceeds exceeds $100 millionDirectors that will take longer than such 365 days to complete, the Issuer will be required within ten period of time necessary to complete such project;
(10B) Business Days thereof second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above (such balance, the “Excess ABL Proceeds”), to make an offer to purchase Notes and (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer Company or a Guarantor such Restricted Subsidiary elects, or the Issuer or a Guarantor is required by the terms thereof) to purchase, redeem or repay any Additional Obligations of the Company or a Restricted Subsidiary, or any other outstanding Indebtedness with Pari Passu Lien Priority with respect to the Note Priority Collateral, pursuant and subject to Section 411(d) and Section 411(e) and the agreements governing such other Indebtedness;
(C) third, to all holders 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 (B) above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 411(c), the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 411(c) except to the extent that the aggregate Net Available Cash from all Asset Dispositions subject to this Section 411(c) or equivalent amount that is not applied in accordance with this Section 411(c) exceeds $15.0 million. If the aggregate principal amount of Notes and/or other Indebtedness of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to clause (B) above exceeds the Excess ABL Proceeds, the Excess ABL Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess ABL Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess ABL Proceeds amount multiplied by a fraction, the numerator of which is the outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to the denominator of which is the Asset Disposition Offer applies that may be purchased out sum of the Excess Proceeds, at an offer price in respect outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. For the purposes of clause (ii) of paragraph (a) above, the following are deemed to be cash: (1) Temporary Cash Investments and Cash Equivalents, (2) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days, (5) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary, (6) Additional Assets and (7) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause, not to exceed an aggregate amount at any time outstanding equal to $40.0 million (andwith 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).
(d) In the event of an Asset Disposition that requires the purchase of Notes pursuant to Section 411(b)(B) or Section 411(c)(B), the Company will be required to purchase Notes tendered pursuant to an offer by the Company for the Notes (the “Offer”) at a purchase price of 100% of their principal amount plus accrued and unpaid interest to the date of purchase in accordance with the procedures (including prorating in the case event of any Pari Passu Indebtedness, an offer oversubscription) set forth in Section 411(e). If the aggregate purchase price of no more thanthe Notes tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of Notes, the remaining Net Available Cash will be available to the Company for use in accordance with Section 411(b)(B) or Section 411(c)(B) (to repay other Indebtedness of the Company or a Restricted Subsidiary) or Section 411(b)(C) or Section 411(c)(C). The Company shall not be required to make an Offer for Notes pursuant to this Section 411 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 411(b)(A) or Section 411(c)(A), as applicable) 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). No Note will be repurchased in part if less than the Minimum Denomination in original principal amount of such Note would be left outstanding.
(e) The Company shall, not later than 45 days after the Company becomes obligated to make an Offer pursuant to this Section 411, mail a notice to each Holder with a copy to the Trustee 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 a portion of such Holder’s Notes at a purchase price in cash equal to 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each casethereof, plus accrued and unpaid interest, if any, to, but not including, to the date of purchasepurchase (subject to the right of Holders of record on a record date to receive interest on the relevant Interest Payment Date); (2) the repurchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed); (3) the instructions determined by the Company, consistent with this Section 411, that a Holder must follow in accordance with order to have its Notes purchased; and (4) the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case amount of the NotesOffer. If, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce upon the principal amount at maturity expiration of the Notes held by any holder to below $200,000. The Issuer may satisfy period for which the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (orremains open, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) Company shall be allocated among select the Notes and Pari Passu Indebtedness 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 the aggregate principal amount $2,000 or integral multiples of tendered Notes and Pari Passu Indebtedness. $1,000 in excess thereof shall be purchased).
(f) For the purposes of calculating Section 411(b) and Section 411(c), (i) in the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion event of any Asset Disposition Offerof Capital Stock of a Person that has any right, the amount title or interest to or in assets constituting both Non-ABL Assets and ABL Priority Collateral, such Asset Disposition shall instead be deemed to be an Asset Disposition of Excess Proceeds shall be reset at zerosuch assets, and in the case of an Advance Offer, Company shall allocate the amount of Net Available Cash from such Asset Disposition between the Issuer is offering Non-ABL Assets and ABL Priority Collateral in proportion to apply their respective fair market values as determined by the Company in such Advance Offer good faith (which determination shall be excluded conclusive), (ii) any Asset Disposition of Capital Stock of any Person that has any right, title or interest to or in subsequent calculations assets constituting only Non-ABL Assets will be subject to Section 411(b) and not Section 411(c), and (iii) any Asset Disposition of Excess ProceedsCapital Stock of any Person that has any right, title or interest to or in assets constituting only ABL Priority Collateral will be subject to Section 411(c) and not Section 411(b).
(g) To The Company will comply, to the extent that any portion applicable, with the requirements 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount repurchase of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to 411. To the extent lawful, accept for payment, on a pro rata basis to that the extent necessary, the Asset Disposition Offer Amount provisions of Notes and Pari Passu Indebtedness any securities laws or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance regulations conflict with the terms provisions of this Section 4411, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 411 by virtue thereof.
Appears in 2 contracts
Sources: Indenture (Unistrut International Holdings, LLC), Indenture (Unistrut International Holdings, LLC)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
: (1) the Issuer 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 an Officer or the Board of Directors of the IssuerCompany, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and
(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 $375.0 million and 15.0% of LTM EBITDA, if after giving pro forma effect to such Asset Disposition, the Consolidated First Lien Secured Leverage Ratio is greater than 3.50 to 1.00 (or such ratio would not be higher than it was immediately prior to such Asset Disposition), at least 75% of the consideration from such Asset Disposition or such series of related Disposition, together with all other Asset Dispositions since the Issue Date (excluding any consideration on a cumulative basis), (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.
Equivalents; and (c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(13) within 365 540 days from the later of (A) the date of such Asset Disposition and (B) the receipt of the Net Available Cash from such Asset Disposition (as may be extended by an Acceptable Commitment or a Second Commitment as set forth below, the “Proceeds Application Period”), an amount equal to the Applicable Percentage of such Net Available Cash (the “Applicable Proceeds”) is applied, to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness): (i) (A) to reduce, prepay, repayrepay or purchase any Secured Indebtedness, including Indebtedness under the Credit Agreement (or any Refinancing Indebtedness in respect thereof), (B) to reduce, prepay, repay or purchase Pari Passu Indebtedness, (C) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to redeem Notes as described under Section 5.7 hereof, or redeem purchase Notes through open-market purchases or in privately negotiated transactions, or (D) to reduce, prepay, repay or purchase any Indebtedness incurred under Section 4.04(b)(1) of a Non-Guarantor (in each case, other than Indebtedness owed to the Company or any Guarantor IndebtednessRestricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (i), the Issuer Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except other than obligations in the case respect of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through openasset-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) based credit facility to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness assets sold or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case disposed of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.Asset
Appears in 2 contracts
Sources: Indenture (Restaurant Brands International Inc.), Indenture (Restaurant Brands International Limited Partnership)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(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 $30.0 million, at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Escrow Release Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis basis), received by the Issuer or such Restricted Subsidiary, as the case may be, together with all other Asset Dispositions since the Escrow Release Date (on a cumulative basis), is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After an amount equal to 100% of the receipt of Net Available Cash from an such Asset Disposition, Disposition is applied:
(i) to the extent the Issuer or a any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects (or indirectly is required by the terms of any Indebtedness), (at the option A) to prepay, repay or purchase any Indebtedness of a Non-Guarantor or that is secured by a Lien (in each case, other than Indebtedness owed to the Issuer or such any Restricted Subsidiary):
) or any First Priority Obligations, including Indebtedness under the Credit Agreement (1or any Refinancing Indebtedness in respect thereof) within 365 450 days from the later of (A1) the date of such Asset Disposition and (B2) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; or (iiB) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, repay or purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase repayment or redemptionpurchase; provided that further that, to the extent the Issuer redeems, repays or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase repurchases Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if B), the Issuer or such Guarantor purchases 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 a price equal or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth in this Section 3.5 for an Asset Disposition Offer) to or higher than all Holders to purchase their Notes at 100% of the principal amount thereof, or makes an offer to plus the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notesaccrued but unpaid interest, plus accrued and unpaid interest toif any, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal that would otherwise be prepaid; provided further, that, in addition to the proportion that (x) foregoing, the total aggregate principal amount Net Available Cash from an Asset Disposition of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) Collateral may not be applied to prepay, repay, repay or purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated First Priority Obligations, Notes or Pari Passu Indebtedness of the Issuer Issuers or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary)secured by a Lien on such Collateral; (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;and/or
(2ii) to the extent the Issuer or such any Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with equal to the amount of Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 450 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or shall be treated as a permitted application of Net Available Cash from the date of such commitment approved by with the Board of Directors of the Issuer good faith expectation that is executed or approved within an amount equal to Net Available Cash will be applied to satisfy such time will satisfy this requirement, so long as such investment is consummated commitment within 180 days of such 365th daycommitment (an “Acceptable Commitment”) and, in the event of any Acceptable Commitment is later canceled or terminated for any reason before such amount is applied in connection therewith, the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; orprovided further that if any Second Commitment is later canceled or terminated for any reason before such amount is applied, then such Net Available Cash shall constitute Excess Proceeds; and
(4) any combination if such Asset Disposition involves the disposition of clauses (1) through (3) Collateral, the Issuer or such Subsidiary has complied with the provisions of Section 4.08(c), this Indenture and the Collateral Documents; provided that, pending the final application of the amount of any such Net Available Cash in accordance with clauses clause (1), (2), (3i) or clause (4ii) of this Section 4.08(c3.5(a)(3), the Issuer and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest use such Net Available Cash in any manner not prohibited by this Indenture.
(db) Any The amount of any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c3.5(a) will be deemed to constitute “Excess Proceeds.” under this Indenture. On the 366th 451st day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such an Asset Disposition and (B) or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds under this Indenture exceeds (i) $100 100.0 million, in the case of a single transaction or a series of related transactions, or (ii) $200.0 million aggregate amount in any fiscal year, the Issuer will within 10 Business Days be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders Holders of the Notes issued under this Indenture and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms to all holders of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of and, with respect to the Notes, in minimum denominations of $200,000 2,000 and in integral multiples of $1,000 in excess thereof. No The Issuer will deliver notice of such purchase 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 part shall reduce the principal amount at maturity 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 held 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 any holder to below $200,000this Indenture and described in such notice. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such all Net Available Cash prior to the time expiration of the relevant 450 days (or such longer period that may be required by this Indenture provided above) or with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”)any unapplied Excess Proceeds.
(e) [Reserved].
(fc) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent any purpose not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated provided that no Notes or other Pari Passu Indebtedness will be selected and purchased in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)an unauthorized denomination. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Additionally, and in the case Issuer may, at its option, make an Asset Disposition Offer using proceeds from any Asset Disposition at any time after the consummation of an Advance such Asset Disposition. Upon consummation or expiration of any Asset Disposition Offer, the amount of any remaining Net Available Cash shall not be deemed Excess Proceeds and the Issuer is offering to apply in may use such Advance Offer shall be excluded in subsequent calculations of Excess ProceedsNet Available Cash for any purpose not prohibited by this Indenture.
(gd) To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than dollarsDollars, the amount thereof payable in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in Dollars that is actually received by the Issuer upon converting such portion into Dollars.
(e) 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 by a Foreign Subsidiary (a “Foreign Disposition”) is prohibited or delayed by applicable local law from being repatriated to the United States or Canada, 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 will not permit repatriation to the United States or Canada (the Issuer hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all commercially reasonable actions available under the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and such repatriated Net Available Cash will be promptly (and in any event not later than three (3) Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) in compliance with this Section 3.5 and (ii) to the extent that the Issuer 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 repatriation whereby doing so the Issuer, any Restricted Subsidiary, or any of their respective affiliates and/or equity owners would include a tax liability, including as a result of a dividend or deemed dividend, or a withholding tax, but taking into account any foreign tax credit or benefit received in connection with such repatriation) with respect to such Net Available Cash, the Net Available Cash so affected may be retained by the applicable Foreign Subsidiary.
(f) 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 Issuer or a Restricted Subsidiary (other than Subordinated Indebtedness of the Issuer, the Co-Issuer or a Guarantor) and the release of the Issuer or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition;
(ii) securities, notes or other obligations received by the Issuer or any Restricted Subsidiary of the Issuer from the transferee that are converted by the Issuer or such Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Disposition;
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Issuer and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition;
(iv) consideration consisting of Indebtedness of the Issuer (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Issuer or any Restricted Subsidiary; and
(v) any Designated Non-Cash Consideration received by the Issuer 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 $450.0 million and 2.25% of Total Assets (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).
(g) Upon the commencement of an Asset Disposition Offer, the Issuers shall send, or cause to be sent, by first class mail or electronically, a notice to the Trustee and to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Asset Disposition Offer. Any Asset Disposition Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Disposition Offer, shall state:
(1) that the Asset Disposition Offer is being made pursuant to this Section 3.5 and that, to the extent lawful, all Notes tendered and not withdrawn shall be accepted for payment (unless prorated);
(2) the Asset Disposition payment amount, the Asset Disposition offered price, and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and not later than 60 days from the date such notices is mailed (the “Asset Sale Payment Date”);
(3) that any Notes not tendered or accepted for payment shall continue to accrue interest in accordance with the terms thereof;
(4) that, unless the Issuers default in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrue interest on and after the Asset Sale Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to any Asset Disposition Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent at the address specified in the notice at least three Business Days before the Asset Sale Payment Date;
(6) that Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than two Business Days prior to the Asset Sale Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Note purchased;
(7) that if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition payment amount, the Issuers shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Issuers so that only Notes in denominations of $2,000 or integral multiples of $1,000 in excess thereof shall be purchased); and
(8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry).
(h) The If the Asset Disposition OfferSale Payment Date is on or after a record date and on or before the related interest payment date, in so far as it relates any accrued and unpaid interest shall be paid to the NotesPerson in whose name a Note is registered at the close of business on such record date, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required and no additional interest shall be payable to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Holders who tender Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Sale Payment Date, the Issuer Issuers will, to the extent lawful, permitted by law,
(1) accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.paymen
Appears in 2 contracts
Sources: Indenture (Burger King Worldwide, Inc.), Indenture (New Red Canada Partnership)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(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 $150.0 million and 5.5% of LTM EBITDA, at least 75% of the consideration from such Asset Disposition or such series of related Disposition, together with all other Asset Dispositions since the Issue Date (excluding any consideration on a cumulative basis), (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents (which determination may be made by the Issuer, at its option, either (x) on the date of contractually agreeing to such Asset Disposition or Temporary Cash Investments.(y) at the time the Asset Disposition is completed); and
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(13) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of the Net Available Cash from such Asset Disposition (as may be extended by an Acceptable Commitment as set forth below, the “Proceeds Application Period”), an amount equal to such Net Available Cash is applied, to the extent the Issuer or any Restricted Subsidiary, as the case may be, elects:
(i) (a) to the extent such Net Available Cash are from an Asset Disposition of Collateral (x) to reduce, prepay, repayrepay or purchase any First Lien Obligations (other than the Notes), including Indebtedness under the Credit Agreement and the Existing First Lien Notes (or any Refinancing Indebtedness in respect thereof); provided that the Issuer ratably offer to repurchase Notes (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer), to redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, (y) to make an offer (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, or (z) to reduce, prepay, repay or purchase any Indebtedness incurred under Section 4.04(b)(1) of a Non-Guarantor (in each case, other than Indebtedness owed to the Issuer or any Guarantor IndebtednessRestricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except other than obligations in the case respect of any revolving Indebtednessasset-based credit facility to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to be permanently reduced in an amount equal to the principal amount so reduced, prepaid, repaidrepaid or purchased;
(b) to the extent such Net Available Cash is from an Asset Disposition that does not constitute Collateral, purchased (w) to reduce, prepay, repay or redeemedpurchase any Indebtedness secured by a Lien on such asset, (x) to reduce, prepay, repay or purchase senior Indebtedness; provided, that the Issuer ratably offer to repurchase Notes (ii) unless included in Section 4.08(c)(1)(B)(iaccordance with the procedures set forth below for an Asset Disposition Offer), to prepay, repay, redeem Notes as described under Section 5.7 or purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases Notes through open-market purchases at a price equal or in privately negotiated transactions, (y) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer), redeem Notes as described under Section 5.7 or higher than 100% of the principal amount thereofpurchase Notes through open-market purchases or in privately negotiated transactions, or makes an offer (z) to the Holders reduce, prepay, repay or purchase any Indebtedness of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, the date of purchase Non-Guarantor (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereofi), or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer or such Restricted Subsidiary elects, to invest will retire such Indebtedness and will cause the related commitment (other than obligations in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application respect of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, asset-based credit facility to the extent the Issuer assets sold or a Guarantor elects, or the Issuer or a Guarantor is required by the terms otherwise disposed of other outstanding Pari Passu Indebtedness, to all holders of in connection with such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may constituted “borrowing base assets”) to be purchased out of the Excess Proceeds, at an offer price in respect of the Notes reduced in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtednessso reduced, in each caseprepaid, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture repaid or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.purchased;
Appears in 2 contracts
Sources: Indenture (Frontier Communications Parent, Inc.), Indenture (Frontier Communications Parent, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the IssuerCompany, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(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 $400.0 million and 1.50% of Total Assets, other than in a sale of the Budget Truck Division for fair market value, at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis basis), received by the Issuer Company or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After an amount equal to the receipt Applicable Percentage of the Net Available Cash (the “Applicable Proceeds”) from an such Asset Disposition, Disposition is applied:
(A) to the Issuer extent the Company or a any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects (or indirectly (at is required by the option terms of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash any Indebtedness), (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment repay or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or Non-Guarantor, any Indebtedness that is secured on assets by a Lien (in each case, other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer Company or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or Indebtedness under the Credit Agreement (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer or such Restricted Subsidiary elects, to invest any Refinancing Indebtedness in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiaryrespect thereof) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 545 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that that, in connection with any such capital expenditure made prepayment, repayment or purchase of Indebtedness pursuant to this clause (i), the Company or Restricted Subsidiary shall retire such Indebtedness and shall cause the related commitment (if any) to be reduced in an amount equal to the principal amount so prepaid, repaid or purchased or (ii) to prepay, repay or purchase Pari Passu Indebtedness at a definitive binding agreement price of no more than 100% of the principal amount of such Pari Passu Indebtedness plus accrued and unpaid interest, if any, to, but not including, the date of such prepayment, repayment or purchase; provided, further, that, to the extent the Company or a commitment approved by Restricted Subsidiary redeems, repays or repurchases Pari Passu Indebtedness pursuant to this clause (ii), the Board of Directors Company 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 Issuer that is executed principal amount thereof) or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
by making an offer (4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1)the procedures set forth below for an Asset Disposition Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, (2)plus the amount of accrued but unpaid interest, (3) or (4) if any, on the amount of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or Notes that would otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.be prepaid; and/or
(dB) Any Net Available Cash from Asset Dispositions that is not applied to the extent the Company or invested any Restricted Subsidiary elects, to invest in or committed commit to be applied or invested as provided invest in Section 4.08(c) will be deemed Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary equal to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case amount of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved Applicable Proceeds received by the Board of Directors of the Issuer pursuant to clause (2Company or another Restricted Subsidiary) or (3) of Section 4.08(c)) after within 545 days from the later of (Ai) the date of such Asset Disposition and (Bii) the receipt of such Net Available CashApplicable Proceeds; provided, however, that a binding agreement shall be treated as a permitted application of Applicable Proceeds from the date of such commitment with the good faith expectation that an amount equal to Applicable Proceeds will be applied to satisfy such commitment within 180 days of such commitment; provided that, (1) pending the final application of the amount of any such Applicable Proceeds in accordance with clause (A) or (B) of Section 3.5(a)(3), the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness (including under the Credit Facility) or otherwise use such Applicable Proceeds 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 Applicable Proceeds 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 Section 3.5(a)(3)(B) with respect to such Asset Disposition.
(b) On the 546th day after the later of an Asset Disposition or the receipt of such Applicable Proceeds, if the aggregate amount of Excess Proceeds under this Indenture exceeds (i) the greater of $100 million200.0 million and 0.75% of Total Assets, in the case of a single transaction or a series of related transactions, or (ii) the greater of $400.0 million and 1.50% of Total Assets aggregate amount in any fiscal year, (such amount of Applicable Proceeds that do not exceed (i) the greater of $200.0 million and 0.75% of Total Assets, in the case of a single transaction or a series of related transactions, or (ii) the greater of $400.0 million and 1.50% of Total Assets aggregate amount in any fiscal year, “Declined Excess Proceeds” and such amount of Applicable Proceeds that do exceed (i) the greater of $200.0 million and 0.75% of Total Assets, in the case of a single transaction or a series of related transactions, or (ii) the greater of $400.0 million and 1.50% of Total Assets aggregate amount in any fiscal year, “Excess Proceeds”), the Issuer will Company shall within 10 Business Days be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders Holders of the Notes issued under this Indenture and, to the extent the Issuer or a Guarantor Company elects, or the Issuer or a Guarantor is required by the terms to all holders of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of thereof (or in the event such Notes and other Indebtedness was issued with original issue discount, 100% of the principal amount of accreted value thereof) (or such lesser price with respect to Pari Passu Indebtedness, if any, as may be provided by the terms of such other Indebtedness), in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of and, with respect to the Notes, in minimum denominations of $200,000 2,000 and in integral multiples of $1,000 in excess thereof. No The Company shall deliver notice of such purchase Asset Disposition Offer electronically or, at the Company’s option, by first-class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in part shall reduce the principal amount at maturity of the Notes held Register or otherwise in accordance with the applicable 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 10 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by any holder to below $200,000this Indenture and described in such notice. The Issuer Company may satisfy the foregoing obligations with respect to any Net Available Cash Applicable Proceeds from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash all Applicable Proceeds prior to the time expiration of the relevant 545 days (or such longer period that may be required by this Indenture provided above) or with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of unapplied Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 2 contracts
Sources: Indenture (Avis Budget Group, Inc.), Indenture (Avis Budget Group, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1i) the Issuer 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 (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition Disposition, as such fair market value may be determined (includingand shall be determined, for to the avoidance of doubt, if extent such Asset Disposition is a Permitted or any series of related Asset SwapDispositions involves aggregate consideration in excess of $25.0 million) in good faith by the Board of Directors, whose determination shall be conclusive (including as to the value of all noncash consideration); and,
(2ii) in the case of any such Asset Disposition, Disposition (or series of related Asset Dispositions (except to the extent the Asset Disposition is Dispositions) having a Permitted Asset Swap)fair market value of $25.0 million or more, at least 75% of the consideration from such therefor (excluding, in the case of an Asset Disposition (or such series of related Asset Dispositions (excluding Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than that are not Indebtedness)) received by the Company or such Restricted Subsidiary is in the form of cash, together with all other Asset Dispositions since and
(iii) an amount equal to 100% of the Issue Date (except to the extent any Net Available Cash from such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received is applied by the Issuer Company (or such any Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.) as follows:
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and first, either (B) the receipt of such Net Available Cash (ix) to prepay, repay, purchase the extent the Company elects (or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), is required by the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case terms of any revolving Credit Facility Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Senior Indebtedness of the Issuer Company or any Guarantor, 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, purchase Subsidiary Guarantor or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness that is secured on assets or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness (in each case other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer Company or any a Restricted Subsidiary); (iv) to purchase within 365 days after the Notes through open-market purchases at a price equal to or higher than 100% later of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, the date of purchase such Asset Disposition and the date of receipt of such Net Available Cash, (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date) or (v) to redeem the Notes as described under Section 3.07;
(2y) to the extent the Issuer Company or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, or, if such investment in Additional Assets is a project authorized by the aggregate amount Board of Excess Proceeds exceeds $100 millionDirectors that will take longer than such 365 days to complete, the Issuer will be required within ten period of time necessary to complete such project or (10z) Business Days thereof in the case of any HERC Offering, to make one or more Restricted Payments pursuant to Section 409(b)(xiii);
(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 (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer Company or a Guarantor such Restricted Subsidiary elects, or the Issuer or a Guarantor is required by the terms thereof) to purchase, redeem or repay any other Senior Indebtedness of the Company or a Restricted Subsidiary, pursuant and subject to Section 411(b) and Section 411(c) and the agreements governing such other outstanding Pari Passu Indebtedness; and
(C) third, to all holders 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 Subsidiary 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 411, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 411 except to the extent that the aggregate Net Available Cash from all Asset Dispositions or equivalent amount that is not applied in accordance with this Section 411 exceeds $50.0 million. If the aggregate principal amount of Notes or other Indebtedness of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to clause (B) above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to the denominator of which is the Asset Disposition Offer applies that may be purchased out sum of the Excess Proceeds, at an offer price in respect outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. For the purposes of clause (ii) of paragraph (a) above, the following are deemed to be cash: (1) Temporary Cash Investments and Cash Equivalents, (2) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days, (5) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary, (6) Additional Assets and (7) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause, not to exceed an aggregate amount at any time outstanding equal to 1.25% of Consolidated Tangible Assets (andwith the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(b) In the event of an Asset Disposition that requires the purchase of Notes pursuant to Section 411(a)(iii)(B), the Company will be required to purchase Notes tendered pursuant to an offer by the Company for the Notes (the “Offer”) at a purchase price of 100% of their principal amount plus accrued and unpaid interest to the date of purchase in accordance with the procedures (including prorating in the case event of any Pari Passu Indebtedness, an offer oversubscription) set forth in Section 411(c). If the aggregate purchase price of no more thanthe Notes tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of Notes, the remaining Net Available Cash will be available to the Company for use in accordance with Section 411(a)(iii)(B) (to repay other Indebtedness of the Company or a Restricted Subsidiary) or Section 411(a)(iii)(C). The Company shall not be required to make an Offer for Notes pursuant to this Section 411 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 411(a)(iii)(A)) is less than $50.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). No Note will be repurchased in part if less than the Minimum Denomination in original principal amount of such Note would be left outstanding.
(c) The Company shall, not later than 45 days after the Company becomes obligated to make an Offer pursuant to this Section 411, mail a notice to each Holder with a copy to the Trustee 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 a portion of such Holder’s Notes at a purchase price in cash equal to 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each casethereof, plus accrued and unpaid interest, if any, to, but not including, to the date of purchasepurchase (subject to Section 307); (2) the repurchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed); (3) the instructions determined by the Company, consistent with this Section 411, that a Holder must follow in accordance with order to have its Notes purchased; and (4) the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case amount of the NotesOffer. If, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce upon the principal amount at maturity expiration of the Notes held by any holder to below $200,000. The Issuer may satisfy period for which the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (orremains open, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, Holder exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) Company shall be allocated among select the Notes and Pari Passu Indebtedness 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 the aggregate principal amount $2,000 or integral multiples of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated $1,000 in dollars, such Indebtedness excess thereof shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined belowpurchased). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(gd) To The Company will comply, to the extent that any portion applicable, with the requirements 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount repurchase of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to 411. To the extent lawful, accept for payment, on a pro rata basis to that the extent necessary, the Asset Disposition Offer Amount provisions of Notes and Pari Passu Indebtedness any securities laws or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance regulations conflict with the terms provisions of this Section 4411, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 411 by virtue thereof.
Appears in 2 contracts
Sources: Indenture (Hertz Global Holdings Inc), Indenture (Hertz Global Holdings Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer or such Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) 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 an Officer or the Board of Directors (including as to the value of the Issuerall non-cash consideration), of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); andDisposition;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Additional Assets or a combination thereof; and
(c3) After an amount equal to 100% of the receipt of Net Available Cash from an such Asset Disposition, Disposition is applied by the Issuer or a such Restricted Subsidiary, as the case may be:
(a) first, to the extent the Issuer or any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects (or indirectly (at is required by the option terms of any Indebtedness), to prepay, repay or purchase Indebtedness of the Issuer (other than Disqualified Stock or such Restricted Subsidiary):
Subordinated Obligations) or Indebtedness (1other than any Disqualified or Preferred Stock or Guarantor Subordinated Obligations of a Subsidiary Guarantor) of a Subsidiary Guarantor (in each case other than Indebtedness owed to the Issuer or an Affiliate of the Issuer) within 365 360 days from the later of (A) the date of such Asset Disposition and (B) or the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (a), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;and
(2b) second, to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 360 days from the later of (i) the date of such Asset Disposition and (ii) or the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses clause (1), (2), (3a) or clause (4b) of Section 4.08(c)above, the Issuer and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest in such Net Available Cash in any manner not prohibited by this Indenture.
(d) . Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) the preceding paragraph will be deemed to constitute “Excess Proceeds.” On the 366th 361st day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such an Asset Disposition and (B) the receipt of such Net Available CashDisposition, if the aggregate amount of Excess Proceeds exceeds $100 €15 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, and to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness outstanding with similar provisions requiring the Issuer to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”), to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness Notes to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes cash in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, Notes plus accrued and unpaid interestinterest and Additional Amounts, if any, to, but not including, to the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu IndebtednessNotes, as applicable, in denominations of €50,000 and any integral multiple of €1,000 in excess thereof in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, subject to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders holders thereof and other Pari Passu Indebtedness Notes surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) Trustee shall be allocated among select the Notes and Pari Passu Indebtedness Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)Notes. Upon completion of any such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and . The Trustee shall have no liability in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering relation to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) To the extent that any portion of Net Available Cash payable in respect selections made by it pursuant to this Section 4.9. Notice of the Notes is denominated Asset Disposition Offer will be given in a currency other than dollars, the amount thereof payable in respect of the Notes shall not exceed the net Dollar Equivalent of the amount that is actually received by the Issuer.
(h) accordance with this Indenture. The Asset Disposition Offer, in so far as it relates to the Notes, Offer will remain open for a period of not less than 20 Business Days following its commencement or such shorter commencement, except to the extent that a longer period of time is required to comply with Section 14(e) of the Exchange Act and any other by applicable securities laws or regulations in connection with the Asset Disposition Offer law (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, and Pari Passu Indebtedness Notes required to be purchased by it pursuant to this Section 4.08 4.9 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness Notes validly tendered in response to the Asset Disposition Offer.
(i) . 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 Note is registered at the close of business on such record date, and no additional interest will be payable to holders of the Notes who tender Notes pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness Notes or portions of Notes and Pari Passu Indebtedness Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Indebtedness Notes so validly tendered and not properly withdrawn andwithdrawn, in the case of the Notes, Notes in minimum denominations of $200,000 €50,000 and in any integral multiples of $€1,000 in excess thereof.
(j) . The Issuer will deliver to the Trustee an Officer’s Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 44.9 and, in addition, the Issuer will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. The Issuer 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 Notes or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Notes or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Issuer for purchase, and the Issuer will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Issuer will authenticate and mail or deliver such new Note to such holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount of €50,000 and any integral multiple of €1,000 in excess thereof. In addition, the Issuer will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Note not so accepted will be promptly mailed or delivered by the Issuer to the holder thereof. The Issuer will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date. For the purposes of this Section 4.9, 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 Issuer or Indebtedness (other than Disqualified Stock or Guarantor Subordinated Obligations) of any Subsidiary Guarantor and the release of the Issuer or such Subsidiary Guarantors from all liability on such Indebtedness in connection with such Asset Disposition (in which case the Issuer will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with clause (a) above); and
(2) securities, notes or other obligations received by the Issuer or any Restricted Subsidiary from the transferee that are converted within 90 days by the Issuer or such Restricted Subsidiary into cash. The Issuer will comply, to the extent applicable, with any securities laws or regulations in connection with the repurchase of Notes pursuant to this Indenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.9, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of any conflict.
Appears in 2 contracts
Sources: Indenture (Central European Media Enterprises LTD), Indenture (Central European Media Enterprises LTD)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company and Parent shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition unless:
(1) the Issuer Parent or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) such Asset 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 non-cash consideration), as determined in good faith by an Officer or the Board of Directors of the IssuerDirectors, of the shares and or assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); andDisposition;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration thereof received by Parent or such Restricted Subsidiary is in the form of Permitted Asset Disposition Consideration;
(3) with respect to Asset Dispositions by Parent and its Wholly Owned Subsidiaries, an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by Parent or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer or such Restricted Wholly Owned Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.:
(cA) After FIRST, to the receipt extent the Company so elects (or is required by the terms of any Indebtedness), to prepay, repay, purchase, repurchase, redeem, defease or otherwise acquire or retire for value Senior Indebtedness of the Company or any Guarantor or Indebtedness of a Wholly Owned Subsidiary of Parent that is not a Guarantor (in each case other than Indebtedness owed to Parent or a Subsidiary of Parent) within one year from the date of such Asset Disposition;
(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 so elects, to acquire Additional Assets within one year from the date of such Asset Disposition; and
(C) THIRD, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to Securityholders (and to holders of other Senior Subordinated Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture; and
(4) with respect to Asset Dispositions by Restricted Subsidiaries that are not Wholly Owned Subsidiaries, an amount equal to 100% of the Net Available Cash from an such Asset Disposition is applied by such Restricted Subsidiary:
(A) FIRST, to the extent the Restricted Subsidiary so elects (or is required by the terms of any Indebtedness), to prepay, repay, purchase, repurchase, redeem, defease or otherwise acquire or retire for value Indebtedness of such Restricted Subsidiary within one year from the date of such Asset Disposition;
(B) SECOND, to the Issuer or extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Restricted Subsidiary so elects, to acquire Additional Assets within one year from the date of such Asset Disposition; and
(C) THIRD, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) of this Section 4.07(a)(4), to distribute such Net Available Cash PRO RATA to holders of Common Stock of such Restricted Subsidiary; PROVIDED, THAT, upon receipt of any Net Available Cash from a Restricted SubsidiarySubsidiary pursuant to subparagraph (a)(4)(A) or (a)(4)(C) of this Section 4.07, as the case may be, may a Restricted Subsidiary that is not a Wholly Owned Subsidiary shall apply such Net Available Cash directly in accordance with Section 4.07(a)(4) above, and Parent or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of a Wholly Owned Subsidiary shall apply such Net Available Cash (iin accordance with Section 4.07(a)(3) to prepayabove; and PROVIDED, repayHOWEVER, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, that in connection with any prepayment, repayment repayment, purchase, repurchase, redemption, defeasance or purchase other acquisition or retirement for value of Indebtedness pursuant to subparagraph (a)(3)(A) or (a)(4)(A) of this Section 4.08(c)(1)(B)(i)4.07, the Issuer Parent or such Restricted Subsidiary will shall permanently retire such Indebtedness and will shall cause the related loan commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to purchased. To the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with that any Net Available Cash received by the Issuer or another Restricted Subsidiaryremains after compliance with clauses (a)(3) within 365 days from the later of (i) the date of such Asset Disposition and (iia)(4) of this Section 4.07, Parent or any Wholly Owned Subsidiary, as the receipt of case may be, may use such Net Available Cash; providedCash for any purpose not otherwise prohibited by this Indenture. Notwithstanding the foregoing provisions of this Section 4.07, however, that Parent and its Restricted Subsidiaries shall not be required to apply any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of this Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed 4.07 except to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and Net Available Cash from all Asset Dispositions which is not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, applied in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in accordance with this IndentureSection 4.07 exceeds $10.0 million. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount Pending application of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or4.07, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered such Net Available Cash shall be invested in response Temporary Cash Investments or applied to the Asset Disposition Offertemporarily reduce revolving credit indebtedness.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 2 contracts
Sources: Indenture (Medical Documenting Systems Inc), Indenture (United Surgical Partners International Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1i) the Issuer 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 (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition Disposition, as such fair market value may be determined (includingand shall be determined, for to the avoidance of doubt, if extent such Asset Disposition is a Permitted or any series of related Asset SwapDispositions involves aggregate consideration in excess of $25.0 million) in good faith by the Board of Directors, whose determination shall be conclusive (including as to the value of all noncash consideration); and,
(2ii) in the case of any such Asset Disposition, Disposition (or series of related Asset Dispositions (except to the extent the Asset Disposition is Dispositions) having a Permitted Asset Swap)fair market value of $15.0 million or more, at least 75% of the consideration from such therefor (excluding, in the case of an Asset Disposition (or such series of related Asset Dispositions (excluding Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than that are not Indebtedness)) received by the Company or such Restricted Subsidiary is in the form of cash, together with all other Asset Dispositions since and
(iii) an amount equal to 100% of the Issue Date (except to the extent any Net Available Cash from such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received is applied by the Issuer Company (or such any Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.) as follows:
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and first, either (B) the receipt of such Net Available Cash (ix) to prepay, repay, purchase the extent the Company elects (or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), is required by the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case terms of any revolving Bank Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Senior Indebtedness of the Issuer Company or any Guarantor, 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, purchase Subsidiary Guarantor or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness that is secured on assets or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness (in each case other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer Company or any a Restricted Subsidiary); (iv) to purchase within 365 days after the Notes through open-market purchases at a price equal to or higher than 100% later of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, the date of purchase (subject to such Asset Disposition and the right date of Holders receipt of record on the relevant record date to receive interest due on the relevant interest payment date) such Net Available Cash, or (v) to redeem the Notes as described under Section 3.07;
(2y) to the extent the Issuer Company or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, or, if such investment in Additional Assets is a project authorized by the aggregate amount Board of Excess Proceeds exceeds $100 millionDirectors that will take longer than such 365 days to complete, the Issuer will be required within ten period of time necessary to complete such project;
(10B) Business Days thereof 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 (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer Company or a Guarantor such Restricted Subsidiary elects, or the Issuer or a Guarantor is required by the terms thereof) to purchase, redeem or repay any other Senior Indebtedness of the Company or a Restricted Subsidiary, pursuant and subject to Section 411(b) and Section 411(c) and the agreements governing such other outstanding Pari Passu Indebtedness; and
(C) third, to all holders 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 Subsidiary 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 411, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 411 except to the extent that the aggregate Net Available Cash from all Asset Dispositions or equivalent amount that is not applied in accordance with this Section 411 exceeds $30.0 million. If the aggregate principal amount of Notes or other Indebtedness of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to clause (B) above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to the denominator of which is the Asset Disposition Offer applies that may be purchased out sum of the Excess Proceeds, at an offer price in respect outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. For the purposes of clause (ii) of paragraph (a) above, the following are deemed to be cash: (1) Temporary Cash Investments and Cash Equivalents, (2) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days, (5) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary, (6) Additional Assets and (7) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause, not to exceed an aggregate amount at any time outstanding equal to the greater of $50.0 million and 5.75% of Consolidated Tangible Assets (andwith the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(b) In the event of an Asset Disposition that requires the purchase of Notes pursuant to Section 411(a)(iii)(B), the Company will be required to purchase Notes tendered pursuant to an offer by the Company for the Notes (the “Offer”) at a purchase price of 100% of their principal amount plus accrued and unpaid interest to the Purchase Date in accordance with the procedures (including prorating in the case event of any Pari Passu Indebtedness, an offer oversubscription) set forth in Section 411(c). If the aggregate purchase price of no more thanthe Notes tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of Notes, the remaining Net Available Cash will be available to the Company for use in accordance with Section 411(a)(iii)(B) (to repay other Indebtedness of the Company or a Restricted Subsidiary) or Section 411(a)(iii)(C). The Company shall not be required to make an Offer for Notes pursuant to this Section 411 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 411(a)(iii)(A)) is less than $30.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). No Note will be repurchased in part if less than $2,000 in original principal amount of such Note would be left outstanding.
(c) The Company shall, not later than 45 days after the Company becomes obligated to make an Offer pursuant to this Section 411, mail a notice to each Holder with a copy to the Trustee 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 a portion of such Holder’s Notes at a purchase price in cash equal to 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each casethereof, plus accrued and unpaid interest, if any, to, but not including, 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 411, that a Holder must follow in accordance with order to have its Notes purchased; and (5) the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case amount of the NotesOffer. If, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce upon the principal amount at maturity expiration of the Notes held by any holder to below $200,000. The Issuer may satisfy period for which the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (orremains open, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, Holder exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) Company shall be allocated among select the Notes and Pari Passu Indebtedness 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 the aggregate principal amount $2,000 or integral multiples of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated $1,000 in dollars, such Indebtedness excess thereof shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined belowpurchased). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(gd) To The Company will comply, to the extent that any portion applicable, with the requirements 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount repurchase of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to 411. To the extent lawful, accept for payment, on a pro rata basis to that the extent necessary, the Asset Disposition Offer Amount provisions of Notes and Pari Passu Indebtedness any securities laws or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance regulations conflict with the terms provisions of this Section 4411, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 411 by virtue thereof.
Appears in 2 contracts
Sources: Indenture (Sally Beauty Holdings, Inc.), Indenture (New Sally Holdings, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1i) the Issuer 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 (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the Issuer, Fair Market Value of the shares and assets subject to such Asset Disposition Disposition, as such Fair Market Value (including, on the date a legally binding commitment for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swapwas entered into) may be determined in good faith by the Company, whose determination shall be conclusive (including as to the value of all noncash consideration); and;
(2ii) in the case of any such Asset Disposition, Disposition (or series of related Asset Dispositions Dispositions) having a Fair Market Value (except to on the extent the date a legally binding commitment for such Asset Disposition is a Permitted Asset Swap)was entered into) of $50.0 million or more, at least 7575.0% of the consideration from such therefor (excluding, in the case of an Asset Disposition (or such series of related Asset Dispositions (excluding Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than that are not Indebtedness)) for such Asset Disposition, together with all other Asset Dispositions since the Issue Date (except on a cumulative basis) received by the Company or such Restricted Subsidiary is in the form of cash; and
(iii) an amount equal to 100.0% of the extent any Net Available Cash from such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received is applied by the Issuer Company (or such any Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.) as follows:
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and first, either (B) the receipt of such Net Available Cash (ix) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer extent the Company or such Restricted Subsidiary will retire such Indebtedness and will cause elects (or is required by the related commitment (if any) (except in the case terms of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Senior Indebtedness of the Issuer Company or any Guarantor, 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, purchase Subsidiary Guarantor or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness that is secured on assets or Obligations in respect thereof or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness or Obligations in respect thereof (in each case other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer Company or any a Restricted Subsidiary); (iv) to purchase within 18 months after the Notes through open-market purchases at a price equal to or higher than 100% later of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, the date of purchase (subject to such Asset Disposition and the right date of Holders receipt of record on the relevant record date to receive interest due on the relevant interest payment date) such Net Available Cash, or (v) to redeem the Notes as described under Section 3.07;
(2y) to the extent the Issuer Company or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 days 18 months from the later of (i) the date of such Asset Disposition and (ii) the date of receipt of such Net Available Cash or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 18 months to complete, the period of time necessary to complete such project; provided that the Company and its Restricted Subsidiaries will be deemed to have reinvested such Net Available Cash if and to the extent that, within 18 months after the Asset Disposition that generated the Net Available Cash, the Company or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement to consummate any such investment described in this clause (A) with the good faith expectation that such Net Available Cash will be applied to satisfy such commitment within 180 days of such commitment;
(B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above (such balance, the “Excess Proceeds”), to make an offer to purchase Notes and (to the extent the Company or such Restricted Subsidiary elects, or is required by the terms thereof) to purchase, redeem, prepay or repay any other Senior Indebtedness of the Company or a Restricted Subsidiary, pursuant and subject to Section 411(b) and Section 411(c) and the agreements governing such other Indebtedness; provided, further, that, if after giving effect to such purchases, redemptions, prepayments or repayments, (x) the Consolidated Secured Leverage Ratio is equal to or less than 1.00:1.00 and greater than 0.75:1.00, only 50% and (y) the Consolidated Secured Leverage Ratio is equal to or less than 0.75:1.00, 0.00%, in each case, of such Excess Proceeds shall be required to be used to make such an offer; and
(C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) above (the amount of such balance, “Declined Excess Proceeds”), 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 or the making of other Restricted Payments); provided, however, that (1) in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A)(x) or (B) above, the Company or such reinvestment Restricted Subsidiary 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 and (2) the Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (A)(y) above with respect to such Asset Disposition. Notwithstanding the foregoing provision in Section 411(a)(iii), to the extent that repatriating any or all of the Net Available Cash from any Asset Disposition by a definitive binding agreement Foreign Subsidiary (x) would result in material adverse tax consequences to the Company or a commitment approved any of its Subsidiaries or (y) is prohibited or delayed by applicable local law from being repatriated to the United States (in the case of the foregoing clauses (x) and (y), as reasonably determined by the Board of Directors of Company in good faith which determination shall be conclusive), the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt portion of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time Cash so affected will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed be required to be applied or invested as in compliance with clause (iii) of the first paragraph of this covenant, and such amounts may be retained by the applicable Foreign Subsidiary; provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th daythat, in the case of this clause (y), the Company shall take commercially reasonable efforts to cause the applicable Foreign Subsidiary to take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation, and if such repatriation of any of such affected Net Available Cash can be achieved such repatriation will be promptly effected and such repatriated Net Available Cash will be applied (whether or not repatriation actually occurs) in compliance with clause (iii) of the first paragraph of this covenant. The time periods set forth in this covenant shall not start until such time as the Net Available Cash may be repatriated whether or not such repatriation actually occurs. Notwithstanding the foregoing provisions of this Section 411, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash committed or equivalent amount in accordance with this Section 411 except to be used pursuant to a definitive binding agreement the extent that the aggregate Net Available Cash from all Asset Dispositions or commitment approved by equivalent amount that is not applied in accordance with this Section 411 exceeds $30.0 million. If the Board aggregate principal amount of Directors Notes and/or other Indebtedness of the Issuer Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to clause (2B) above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or (3) a Restricted Subsidiary, with the portion of Section 4.08(c)) after the later Excess Proceeds payable in respect of such Notes to equal the lesser of (Ax) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 millionamount multiplied by a fraction, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders numerator of which is the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to the denominator of which is the Asset Disposition Offer applies that may be purchased out sum of the Excess Proceeds, at an offer price in respect outstanding principal amount of the Notes in an and the outstanding principal amount equal of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. For the purposes of Section 411(a)(ii), the following are deemed to be cash: (and, in 1) Temporary Cash Investments and Cash Equivalents; (2) the case assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Pari Passu Indebtedness, an offer price Restricted Subsidiary and the release of no more than) 100% the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition; (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Disposition; (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days; (5) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary; (6) Additional Assets; and (7) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause, not to exceed an aggregate amount at any time outstanding equal to the greater of $50.0 million and 1.25% of Consolidated Tangible Assets (with the Fair Market Value of each item of Designated Noncash Consideration being measured on the date a legally binding commitment for such disposition (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in value).
(b) In the event of an Asset Disposition that requires the purchase of Notes pursuant to Section 411(a)(iii)(B), the Company will be required to purchase Notes validly tendered and not withdrawn pursuant to an offer by the Company for the Notes (the “Offer”) at a purchase price of 100.0% of their principal amount plus accrued and unpaid interest to the date of purchase in accordance with the procedures (including prorating among the Notes and 100other applicable Indebtedness) set forth in Section 411(c). If the aggregate purchase price of the Notes validly tendered and not withdrawn 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 and the Restricted Subsidiaries for use in accordance with Section 411(a)(iii)(B) (to repay other Senior Indebtedness of the Company or a Restricted Subsidiary) or Section 411(a)(iii)(C) and the amount of Excess Proceeds will be reset at zero. The Company shall not be required to make an Offer for Notes pursuant to this Section 411 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 411(a)(iii)(A)) is less than $50.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). No Note will be repurchased in part if less than $2,000 in original principal amount of such Note would be left outstanding.
(c) The Company shall, not later than 45 days after the Company becomes obligated to make an Offer pursuant to this Section 411, mail or otherwise deliver in accordance with the applicable procedures of DTC a notice to each Holder with a copy to the Trustee 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 a portion of such Holder’s Notes at a purchase price in cash equal to 100.0% of the principal amount of Pari Passu Indebtedness, in each casethereof, plus accrued and unpaid interest, if any, to, but not including, to the date of purchasepurchase (subject to the right of Holders of record on a record date to receive interest on the relevant Interest Payment Date falling prior to or on the purchase date); (2) the repurchase date (which shall be no earlier than 10 days nor later than 60 days from the date such notice is mailed or delivered, except that such notice may be delivered more than 60 days prior to the purchase date if the purchase is delayed as provided in accordance clause (5) of this Section 411(c)); (3) the instructions determined by the Company, consistent with this Section 411, that a Holder must follow in order to have its Notes purchased; (4) the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case amount of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce Offer which amount may be contingent upon the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an remaining following the application of Net Available Cash pursuant to Section 411(a)(iii)(A) and (5) if such notice is mailed or delivered prior to the date the Net Available Cash attributable to such Asset Disposition by making an Asset Disposition Offer with respect to is received, that such offer is conditioned upon receipt of such Net Available Cash prior to and that the purchase date may, in the Company’s discretion, be delayed until such time period that may be required by this Indenture with respect to all or a part of as the available Net Available Cash (is received. If, upon the “Advance Portion”) in advance expiration of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that period for which the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (orremains open, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) Company shall be allocated among select the Notes and Pari Passu Indebtedness 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 the aggregate principal amount $2,000 or integral multiples of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated $1,000 in dollars, such Indebtedness excess thereof shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined belowpurchased). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(gd) To The Company will comply, to the extent that any portion applicable, with the requirements 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount repurchase of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to 411. To the extent lawful, accept for payment, on a pro rata basis to that the extent necessary, the Asset Disposition Offer Amount provisions of Notes and Pari Passu Indebtedness any securities laws or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance regulations conflict with the terms provisions of this Section 4411, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 411 by virtue thereof.
Appears in 2 contracts
Sources: Indenture (Victoria's Secret & Co.), Indenture (Victoria's Secret & Co.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the IssuerCompany, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.; and
(c3) After an amount equal to 100% of the receipt of Net Available Cash from an such Asset DispositionDisposition is applied by the Company or such Restricted Subsidiary, as the Issuer case may be:
(A) to the extent the Company or a any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects (or indirectly (at is required by the option terms of the Issuer or such any Indebtedness of a Restricted Subsidiary):
), (1i) to prepay, repay or purchase any Indebtedness of a Restricted Subsidiary that is not a Guarantor (in each case, other than Indebtedness owed to the Company or any Restricted Subsidiary or Indebtedness under the Senior Facilities Agreement or the Encore Private Placement Notes Agreement (or any Refinancing Indebtedness in respect thereof) within 365 days from the later of (Ax) the date of such Asset Disposition and (By) the receipt of such Net Available Cash Cash; or (iii) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment repay or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, repayment or purchase or redemptionwithin 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided that the Issuer Company or such Guarantor, as applicable, a Restricted Subsidiary shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer Company makes (at such time or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes subsequently in compliance with this Section 4.10) an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of accordance with the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, provisions set forth below for an Asset Disposition Offer for an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;or
(2B) to the extent the Issuer Company or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer Company that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
provided further, that if the assets (4including Capital Stock) sold constitute Collateral, subject to the Agreed Security Principles, the Company shall pledge or shall cause the applicable Restricted Subsidiary to pledge any combination acquired Additional Assets (to the extent such assets (including Capital Stock) were of clauses a category of assets included in the Collateral as of the Issue Date) in favor of the Notes on a first-ranking basis (1) through (3) of Section 4.08(csubject to pre-existing Liens and Permitted Collateral Liens), provided that, pending the final application of any such Net Available Cash in accordance with clauses clause (1), (2), (3A) or clause (4B) of Section 4.08(c)above, the Issuer Company and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(db) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in the preceding paragraph, or offered to be applied in accordance with Section 4.08(c4.10(a)(3)(A)(ii) above, will be deemed to constitute “Excess Proceeds.” ”. On the 366th day (after an Asset Disposition, or at such earlier date that the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available CashCompany elects, if the aggregate amount of Excess Proceeds exceeds $100 million25.0 million (or equivalent thereof), the Issuer will Company or another Restricted Subsidiary shall be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes Holders and, to the extent the Issuer Company or a Guarantor such Restricted Subsidiary elects, or the Issuer or a Guarantor is required by the terms to all holders of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture Section 3.09 or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 €100,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $€1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 2 contracts
Sources: Indenture (Encore Capital Group Inc), Indenture (Encore Capital Group Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries restricted Subsidiary to, make directly or indirectly, sell, transfer or otherwise dispose of (collectively, a "disposition") any Asset Disposition Capital Stock of any Person that owns, directly or indirectly, all or a significant portion of the Tubular Business, unless:
(1i) the Issuer Company or such Restricted Subsidiary receives consideration at the time of such disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the Capital Stock subject to such disposition;
(ii) 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 75% of the Net Available Cash from such disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) to make an offer to the holders of the Notes to purchase Notes pursuant to and subject to the conditions contained in the Indenture within 30 days from the later of the date of such disposition or the receipt of such Net Available Cash; provided, however, that the Company or such Restricted Subsidiary shall permanently retire such Notes. Pending application of Net Available Cash pursuant to this paragraph (a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce indebtedness under Credit Facilities.
(b) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any other Asset Disposition unless:
(i) the Company or such Restricted Subsidiary receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) such Asset 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 non cash consideration), as determined in good faith by an Officer or the Board of Directors of the Issuer, Issuer of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and
(2ii) in any such Asset Disposition, or series of related with respect to Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap)other than Like-Kind Exchanges or Excluded Real Property Sales, 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 or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received is applied by the Issuer Company (or such Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
): (1) 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 Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 365 days one year from the later of (A) the date of such Asset Disposition and (B) or the receipt of such Net Available Cash; (2) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (i1), 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 (3) third, to prepaythe extent of the balance of such Net Available Cash after application in accordance with clauses (1) and (2), repay, 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 or redeem any Notes (and such other Senior Indebtedness incurred under Section 4.04(b)(1of the Company) or any Guarantor Indebtednesspursuant to and subject to the conditions contained in the Indenture; provided, however, that, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i)clause (1) or (3) above, the Issuer Company or such Restricted Subsidiary will shall permanently retire such Indebtedness and will shall cause the related loan commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemed; (ii) unless included in purchased. Notwithstanding the foregoing provisions of Section 4.08(c)(1)(B)(i4.15(b), the Company and the Restricted Subsidiaries shall not be required to prepay, repay, purchase or redeem apply any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1Section 4.15(b) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with Section 4.15(b) exceeds $25 million. Pending application of Net Available Cash pursuant to Section 4.15(b), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce indebtedness under Credit Facilities.
(c) For the purposes of Sections 4.15(a) and (b), the following are deemed to be cash or cash equivalents: (A) the assumption of Senior Indebtedness of the Company, or Indebtedness of any manner not prohibited Restricted Subsidiary, and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition; (B) securities received by this Indenturethe Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash; and (C) any reduction of Indebtedness Attributed to the U. S. Steel Group in connection with such Asset Disposition.
(d) Any Net Available Cash from In the event of an Asset Dispositions Disposition that is not applied requires the purchase of Notes (and other Senior Indebtedness) pursuant to Section (a)(iii) or invested or committed (b)(iii)(3) above, the Company shall purchase Notes tendered pursuant to be applied or invested as provided in Section 4.08(can offer by the Company for the Notes (and such other Senior Indebtedness) will be deemed to constitute “Excess Proceeds.” On the 366th day at a purchase price of 100% of their principal amount (or the 546th dayor, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors event such other Senior Indebtedness was issued with significant original issue discount, 100% of the Issuer pursuant to clause accreted value thereof), without premium, plus accrued but unpaid interest (2) or (3) of Section 4.08(c)) after the later of (A) the date or, in respect of such Asset Disposition and (B) the receipt of other Senior Indebtedness, such Net Available Cashlesser price, if the aggregate amount of Excess Proceeds exceeds $100 millionany, the Issuer will as may be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required provided for by the terms of other outstanding Pari Passu such Senior Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount purchase price of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, securities tendered exceeds the amount of Excess Proceeds (or, in the case of an Advance OfferNet Available Cash allotted to their purchase, the Advance Portion), Company shall select the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness securities to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated but in dollarsround denominations, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and 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 Advance Offer, offer to purchase Notes (and other Senior Indebtedness) pursuant to Section 4.15(b) if the amount of Net Available Cash the Issuer available therefor is offering to apply in such Advance Offer less than $25 million (which lesser amount shall be excluded in carried forward for purposes of determining whether such an offer is required with respect to the Net Available Cash from any subsequent calculations of Excess ProceedsAsset Disposition).
(ge) To The Company shall comply, to the extent that any portion applicable, with the requirements 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount repurchase of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to 4.15. To the extent lawful, accept for payment, on a pro rata basis to that the extent necessary, the Asset Disposition Offer Amount provisions of Notes and Pari Passu Indebtedness any securities laws or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance regulations conflict with the terms provisions of this Section 44.15, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this clause by virtue of its compliance with such securities laws or regulations.
Appears in 2 contracts
Sources: Indenture (United States Steel Corp), Indenture (United States Steel Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the IssuerCompany, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.; and
(c3) After an amount equal to 100% of the receipt of Net Available Cash from an such Asset DispositionDisposition is applied by the Company or such Restricted Subsidiary, as the Issuer case may be:
(A) to the extent the Company or a any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects (or indirectly (at is required by the option terms of the Issuer or such any Indebtedness of a Restricted Subsidiary):
), (1i) to prepay, repay or purchase any Indebtedness of a Restricted Subsidiary that is not a Guarantor (in each case, other than Indebtedness owed to the Company or any Restricted Subsidiary or Indebtedness under the Senior Facilities Agreement or the Existing Encore Private Placement Notes Agreement (or any Refinancing Indebtedness in respect thereof) within 365 days from the later of (Ax) the date of such Asset Disposition and (By) the receipt of such Net Available Cash Cash; or (iii) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment repay or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, repayment or purchase or redemptionwithin 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided that the Issuer Company or such Guarantor, as applicable, a Restricted Subsidiary shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer Company makes (at such time or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes subsequently in compliance with this Section 4.10) an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of accordance with the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, provisions set forth below for an Asset Disposition Offer for an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;or
(2B) to the extent the Issuer Company or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer Company that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
provided further, that if the assets (4including Capital Stock) sold constitute Collateral, subject to the Agreed Security Principles, the Company shall pledge or shall cause the applicable Restricted Subsidiary to pledge any combination acquired Additional Assets (to the extent such assets (including Capital Stock) were of clauses a category of assets included in the Collateral as of the Issue Date) in favor of the Notes on a first-ranking basis (1) through (3) of Section 4.08(csubject to pre-existing Liens and Permitted Collateral Liens), provided that, pending the final application of any such Net Available Cash in accordance with clauses clause (1), (2), (3A) or clause (4B) of Section 4.08(c)above, the Issuer Company and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(db) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in the preceding paragraph, or offered to be applied in accordance with Section 4.08(c4.10(a)(3)(A)(ii) above, will be deemed to constitute “Excess Proceeds.” ”. On the 366th day (after an Asset Disposition, or at such earlier date that the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available CashCompany elects, if the aggregate amount of Excess Proceeds exceeds $100 million25.0 million (or equivalent thereof), the Issuer will Company or another Restricted Subsidiary shall be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes Holders and, to the extent the Issuer Company or a Guarantor such Restricted Subsidiary elects, or the Issuer or a Guarantor is required by the terms to all holders of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture Section 3.09 or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 2 contracts
Sources: Indenture (Encore Capital Group Inc), Indenture (Encore Capital Group Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company and any Permitted Affiliate Parent will not, and will not permit any of its the Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer Company, such Permitted Affiliate Parent 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 conclusively in good faith by an Officer or the Board of Directors or senior management of the IssuerCompany, such Permitted Affiliate Parent or such Restricted Subsidiary (including as to the value of all non-cash consideration), of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); andDisposition;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent unless the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company, such Permitted Affiliate Parent or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After the receipt of Net Available Cash from an such Asset DispositionDisposition is applied by the Company, such Permitted Affiliate Parent or such Restricted Subsidiary, as the Issuer case may be:
(A) to the extent the Company, any Permitted Affiliate Parent or a any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects (or indirectly (at is required by the option terms of any Indebtedness), to prepay, repay or purchase Senior Indebtedness of the Issuer Company or such any Permitted Affiliate Parent (including the Facilities) or any Subsidiary Guarantor or Indebtedness of a Restricted Subsidiary):
Subsidiary that is not a Subsidiary Guarantor (1in each case other than Indebtedness owed to the Company, a Permitted Affiliate Parent or an Affiliate of the Company or Permitted Affiliate Parent) within 365 days from the later of (A) the date of such Asset Disposition and (B) or the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (A), the Issuer Company, such Permitted Affiliate Parent or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;or
(2B) to the extent the Issuer Company, such Permitted Affiliate Parent or such Restricted Subsidiary elects, elects to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) or the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors or senior management of the Issuer that is executed or approved within such time will satisfy this requirementCompany, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement Permitted Affiliate Parent or a commitment approved by the Board of Directors of the Issuer Restricted Parent that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days 6 months of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, that pending the final application of any such Net Available Cash in accordance with clauses clause (1), (2), (3A) or clause (4B) of this Section 4.08(c4.10(a)(3), the Issuer and the Company, a Permitted Affiliate Parent or such Restricted Subsidiaries Subsidiary may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this IndentureAgreement.
(db) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c4.10(a) will be deemed to constitute “Excess Proceeds”.” On
(c) To the 366th day extent that the Company, any Permitted Affiliate Parent or a Restricted Subsidiary is required pursuant to the terms of the Existing Senior Secured Notes Indentures (or any similar terms in an instrument or agreement governing the 546th dayrelevant Senior Indebtedness other than the Finance Documents) to make an offer to redeem or prepay the Indebtedness thereunder (an “Excess Proceeds Redemption Offer”), then the Company, any Permitted Affiliate Parent or a Restricted Subsidiary shall include the outstanding amounts under the Facilities in such offer to prepay (and shall provide notice of such offer to the case of any Net Available Cash committed to be used pursuant to Facility Agent), such that a definitive binding agreement or commitment approved by the Board of Directors portion of the Issuer pursuant Excess Proceeds (the “Prepayment Amount”) that is equivalent to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if proportion that the aggregate amount of Excess Proceeds exceeds $100 millionthe outstandings under the Facilities bears to the aggregate principal amount of other relevant Senior Indebtedness is available to be applied and is so applied in prepayment of the outstanding amount plus accrued and unpaid interest owed to each Lender under the Facilities (to the extent that such Lender accepts any such offer of prepayment).
(d) To the extent that the Company, the Issuer will be any Permitted Affiliate Parent or a Restricted Subsidiary is not required within ten (10) Business Days thereof to make an offer Excess Proceeds Redemption Offer, the Company, any Permitted Affiliate Parent or a Restricted Subsidiary shall procure that the Excess Proceeds are applied in prepayment of the outstanding amounts plus accrued and unpaid interest under one or more Facilities selected by the Company.
(“e) Following compliance with the requirements of paragraph (c) and (d), the Company may use any remaining Excess Proceeds for general corporate purposes in any manner not prohibited by this Agreement.
(f) For the purposes of this Section 4.10, the following will be deemed to be cash:
(1) the assumption by the transferee of Indebtedness (other than Subordinated Obligations) of any Borrower, any Permitted Affiliate Parent or any Subsidiary Guarantor or Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor and the release of the Company, such Permitted Affiliate Parent, such Subsidiary Guarantor or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition Offer”(in which case the Borrower will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with Section 4.10(a)(3)(A) to all holders of this Agreement);
(2) securities, notes or other obligations received by the Notes andCompany, a Permitted Affiliate Parent or any Restricted Subsidiary from the transferee that are convertible by the Company, such Permitted Affiliate Parent 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 Issuer or a Guarantor electsCompany, or the Issuer or a Guarantor is required by the terms any Permitted Affiliate Parent and each other Restricted Subsidiary are released from any guarantee of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% payment of the principal amount of such Notes and 100Indebtedness in connection with such Asset Disposition;
(4) consideration consisting of Indebtedness of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary;
(5) any Designated Non-Cash Consideration received by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value not to exceed 25.0% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, consideration from such Asset Disposition (excluding any consideration received from such Asset Disposition in accordance with Section 4.10(f)(1) to Section 4.10(f)(4)) (with the procedures set forth 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 this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and value); and
(6) in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect addition to any Net Available Designated Non-Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn Consideration received pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance PortionSection 4.10(f)(5), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Designated Non-Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually Consideration received by the Issuer.
(h) The Company, a Permitted Affiliate Parent or any Restricted Subsidiary in such Asset Disposition OfferDispositions having an aggregate fair market value, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply taken together with Section 14(e) of the Exchange Act and any all other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it Designated Non-Cash Consideration received pursuant to this Section 4.08 4.10(f)(6) that is at that time outstanding, not to exceed the greater of €300.0 million and 5.0% of Total Assets (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms fair market value of this Section 4each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
Appears in 2 contracts
Sources: Amendment and Restatement Agreement (Liberty Global PLC), Amendment and Restatement Agreement (Liberty Global PLC)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Borrower will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1a) the Issuer Borrower 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 (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition Disposition, as such fair market value may be determined (includingand shall be determined, for to the avoidance of doubt, if extent such Asset Disposition is a Permitted or any series of related Asset SwapDispositions involves aggregate consideration in excess of the greater of $65.0 million and 10.0% of Consolidated EBITDA, in good faith by the Board of Directors, whose determination shall be conclusive (including as to the value of all noncash consideration); and,
(2b) in the case of any such Asset Disposition, Disposition (or series of related Asset Dispositions (except to Dispositions) having a fair market value of the extent the Asset Disposition is a Permitted Asset Swap)greater of $97.5 million and 15.0% of Consolidated EBITDA or more, at least 75% of the consideration from such therefor (excluding, in the case of an Asset Disposition (or such series of related Asset Dispositions (excluding Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than that are not Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Borrower or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash, Cash Equivalents or Temporary Cash Investments.and
(c) After the receipt of Net Available Cash from an after giving effect to such Asset Disposition, the Issuer or a Restricted Subsidiaryaggregate Revolving Credit Outstandings shall not exceed the Maximum Credit at such time. For the purposes of paragraph (b) above, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
following are deemed to be cash: (1) within 365 days from the later of Cash Equivalents, (A2) the date assumption of such Asset Disposition and Indebtedness, other than Indebtedness that is by its terms subordinated to the Obligations, of the Borrower (B) other than Disqualified Stock of the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1Borrower) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase Restricted Subsidiary and the release of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer Borrower or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, at a price of no more than 100% from all liability on payment of the principal amount of such Pari Passu Indebtedness plus accrued and unpaid interest to the date of in connection with such prepaymentAsset Disposition, repayment(3) Indebtedness, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu other than Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer by its terms subordinated to the Holders Obligations, of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the Notes to purchase their Notes at a purchase price in cash equal to at least 100% extent that the Borrower and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such NotesIndebtedness in connection with such Asset Disposition, plus accrued (4) securities received by the Borrower or any Restricted Subsidiary from the transferee that are converted by the Borrower or such Restricted Subsidiary into cash within 180 days, (5) Additional Assets and unpaid interest to, but not including, (6) any Designated Non-cash Consideration received by the date Borrower or any 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) for, its Restricted Subsidiaries in each case, an Asset Disposition having an aggregate principal Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause, not to exceed an aggregate amount of Notes at least any time outstanding equal to the proportion greater of $260.0 million and 40.0% of Consolidated EBITDA for the Relevant Reference Period (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). Notwithstanding anything to the contrary herein, in no event shall the Borrower or any Guarantor make any Asset Disposition pursuant to this Section 6.04 or make any sale, transfer or other disposition pursuant to an exclusion from the definition of “Asset Disposition” consisting of any Intellectual Property (as defined in the Security Agreement) that (x) is material to the total aggregate principal amount business of Notes outstanding bears to (y) Holdings, the sum of Borrower and the total aggregate principal amount of Notes outstanding plus Restricted Subsidiaries, taken as a whole, at the total aggregate principal amount outstanding time of such Pari Passu Indebtedness; (iii) sale or transfer, to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted an Unrestricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of except for (i) any such transaction that complies with the date terms of Section 6.04(a) (even if such transaction is not an “Asset Disposition Disposition” and is made pursuant to an exclusion from the definition of “Asset Disposition”), Section 6.04(b) ((i) even if such transaction is not an “Asset Disposition” and is made pursuant to an exclusion from the definition of “Asset Disposition” and (ii) applying the receipt 75% cash consideration test set forth therein regardless of the fair market value of such Net Available Cash; provided, however, that any transaction) and Section 6.04(c) (even if such reinvestment in Additional Assets transaction is not an “Asset Disposition” and is made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days an exclusion from the later definition of (A) the date of such “Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1Disposition”), (2), ii) any transfer (3other than any transfer in connection with a financing transaction) by the Borrower or (4) of Section 4.08(c), the Issuer and the a Guarantor to a Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions Subsidiary that is not applied or invested or committed a Loan Party of such Intellectual Property that is related to the anticipated business activities to be applied conducted by such Restricted Subsidiary that is not a Loan Party (as determined by the Borrower in good faith) and (iii) granting any Restricted Subsidiary that is not a Loan Party or invested as provided Unrestricted Subsidiary a non-exclusive license in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, such Intellectual Property in the case ordinary course of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”)business.
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 2 contracts
Sources: Abl Credit Agreement (Mattress Firm Group Inc.), Abl Credit Agreement (Mattress Firm Group Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company may not, and will may not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1a) the Issuer Company or such the Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) the Asset Disposition at least equal to the fair market value of the assets subject to the Asset Disposition (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or senior management of the Company or, if the consideration with respect to such Asset Disposition exceeds $75 million, the Board of Directors of the Issuer, Company (including as to the value of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swapall non-cash consideration); and
(2b) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such the Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such the Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer Additional Assets or a any combination thereof; The Company or such Restricted Subsidiary, as the case may be, may elect to apply such all or any portion of the Net Available Cash directly from such Asset Disposition either:
(a) to prepay, repay, purchase, repurchase, redeem, defease or indirectly (at the option otherwise acquire or retire Senior Indebtedness of the Issuer Company (other than Disqualified Stock or such Subordinated Obligations) or Indebtedness of a Restricted Subsidiary):
Subsidiary (1other than any Disqualified Stock or Guarantor Senior Subordinated Indebtedness or Guarantor Subordinated Obligation of a Wholly-Owned Subsidiary Guarantor) (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 365 days from the later of (A) the date of such Asset Disposition and (B) or the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repayment repayment, purchase, repurchase, redemption, defeasance, or purchase acquisition of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (a), the Issuer Company or such Restricted Subsidiary will retire such Indebtedness and and, in the case of revolving Indebtedness, will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemedretired; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;or
(2b) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) make Permitted Business Investments within 365 days from the later of (i) the date of such Asset Disposition and (ii) or the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3a) or (4b) of Section 4.08(c)above, the Issuer Company and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this the Indenture.
(d) . Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) the preceding paragraph will be deemed to constitute “Excess Proceeds.” On Not later than the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such an Asset Disposition and (B) the receipt of such Net Available CashDisposition, if the aggregate amount of Excess Proceeds exceeds $100 25 million, the Issuer will be required within ten (10) Business Days thereof to Company must make an offer (“Asset Disposition Offer”) to all holders Holders of the Notes and, and to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Senior Subordinated Indebtedness, to all holders of other Senior Subordinated Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such other outstanding Senior Subordinated Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Indebtedness Notes”), to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness Notes to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes cash in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, Notes plus accrued and unpaid interest, if any, to, but not including, interest to the date of purchase, in accordance with the procedures set forth in this the Indenture or the agreements governing the Pari Passu IndebtednessNotes, as applicable, and in the each case of the Notes, in a minimum denominations principal amount of $200,000 2,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Issuer and the Restricted Subsidiaries Company may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, subject to the extent not prohibited by the other covenants contained in this the Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders thereof and other Pari Passu Indebtedness Notes surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) Trustee shall be allocated among select the Notes and Pari Passu Indebtedness Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)Notes. Upon completion of any the Asset Disposition Offer, the amount of Excess Proceeds shall will be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) . The Asset Disposition Offer, in so far as it relates to the Notes, will Offer must remain open for a period of not less than 20 Business Days business days following its commencement or such shorter commencement, except to the extent that a longer period of time is required to comply with Section 14(e) of the Exchange Act and any other by applicable securities laws or regulations in connection with the Asset Disposition Offer law (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer Company will purchase the principal amount of Notes and, to the extent it elects, and Pari Passu Indebtedness Notes required to be purchased by it pursuant to this Section 4.08 the Asset Disposition Offer (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness Notes validly tendered in response to the Asset Disposition Offer.
(i) . If the Asset Disposition Purchase Date is on or after a Regular 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 Note is registered at the close of business on such Record Date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Issuer willCompany must, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness Notes or portions of Notes and Pari Passu Indebtedness Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Indebtedness Notes so validly tendered and not properly withdrawn andwithdrawn, in the each case of the Notes, in a minimum denominations principal amount of $200,000 2,000 and in integral multiples of $1,000 in excess thereof.. The Company or the Paying Agent, as the case may be, must promptly (but in any case not later than five business days after the termination of the Asset Disposition Offer Period) mail or deliver to each tendering Holder of Notes or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Notes or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company must promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, must authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company must take any and all other actions required by the agreements governing the Pari Passu Notes. Any Note not so accepted must 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 3.07, the following will be deemed to be cash:
(ja) the assumption by the transferee of Indebtedness (other than Senior Subordinated Indebtedness, Subordinated Obligations or Disqualified Stock) of the Company or Indebtedness of a Restricted Subsidiary (other than Guarantor Senior Subordinated Indebtedness, Guarantor Subordinated Obligations or Disqualified Stock of any Restricted Subsidiary that is a Subsidiary Guarantor) and the release of the Company or the Restricted Subsidiary from all liability on such Indebtedness in connection with the Asset Disposition; and
(b) 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 within 90 days after consummation of the receipt thereof. The Issuer will deliver Company may not, and may not permit any Restricted Subsidiary to, engage in any Asset Swaps, unless:
(a) at the time of entering into the Asset Swap and immediately after giving effect to the Trustee an Officer’s Certificate stating that such Notes Asset Swap, no Default or portions thereof were accepted for payment Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(b) in the event the Asset Swap involves the transfer by the Issuer Company or any Restricted Subsidiary of assets having an aggregate fair market value, as determined by the Board of Directors of the Company in accordance with good faith, in excess of $25 million, the terms of the Asset Swap have been approved by a majority of the members of the Board of Directors of the Company. 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 the Indenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 43.07, the Company will comply with the applicable securities laws and regulations and will be deemed not to have breached its obligations under the Indenture by virtue of such compliance.
Appears in 2 contracts
Sources: First Supplemental Indenture (Unit Corp), First Supplemental Indenture (Unit Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company and any Permitted Affiliate Parent will not, and will not permit any of its the Restricted Subsidiaries to, without the consent of the Required Lenders, make any Asset Disposition unless:
(1) the Issuer Company, such Permitted Affiliate Parent 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), ) (including as determined in good faith by an Officer or to the Board value of Directors of the Issuer, all non-cash consideration) of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); andDisposition;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent unless the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company, such Permitted Affiliate Parent or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) is reinvested or applied to prepay the receipt of such Net Available Cash (i) to prepay, repay, purchase Loans or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Other Applicable Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount in accordance with Section 2.05(b)(i) of Notes at least equal this Agreement.
(b) For the purposes of this Section 4.10, the following will be deemed to the proportion that be cash:
(x1) the total aggregate principal amount assumption by the transferee of Notes outstanding bears to Indebtedness (yother than Subordinated Obligations) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase any Loan Party or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor Loan Party and the release of such Loan Party or any such Restricted Subsidiary from all liability on such Indebtedness that is secured on assets in connection with such Asset Disposition (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on which case the relevant record date Borrower will, without further action, be deemed to receive interest due on the relevant interest payment datehave applied such deemed cash to Indebtedness in accordance with Section 2.05(b)(i) or (v) to redeem the Notes as described under Section 3.07of this Agreement);
(2) to securities, notes or other obligations received by the extent Company, a Permitted Affiliate Parent or any Restricted Subsidiary from the Issuer transferee that are convertible by the Company, such Permitted Affiliate Parent or such Restricted Subsidiary elects, to invest in into cash or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by Equivalents within 180 days following the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date closing of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th dayDisposition;
(3) to make Indebtedness of any Restricted Subsidiary that is no longer a capital expenditure within 365 days from the later of (A) the date Restricted Subsidiary as a result of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes andDisposition, to the extent that the Issuer or a Guarantor electsCompany, or the Issuer or a Guarantor is required by the terms any Permitted Affiliate Parent and each other Restricted Subsidiary are released from any guarantee of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% payment of the principal amount of such Notes and 100Indebtedness in connection with such Asset Disposition;
(4) consideration consisting of Indebtedness of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary;
(5) any Designated Non-Cash Consideration received by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value not to exceed 25.0% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, consideration from such Asset Disposition (excluding any consideration received from such Asset Disposition in accordance with Section 4.10(b)(1) to Section 4.10(b)(4)) (with the procedures set forth 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 this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and value);
(6) in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect addition to any Net Available Designated Non-Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn Consideration received pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance PortionSection 4.10(b)(5), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Designated Non-Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually Consideration received by the Issuer.
(h) The Company, a Permitted Affiliate Parent or any Restricted Subsidiary in such Asset Disposition OfferDispositions having an aggregate fair market value, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply taken together with Section 14(e) of the Exchange Act and any all other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it Designated Non-Cash Consideration received pursuant to this Section 4.08 4.10(b)(6) that is at that time outstanding, not to exceed the greater of $75.0 million and 5.0% of Total Assets (with the “Asset Disposition Offer Amount”) or, if less than fair market value of each item of Designated Non-Cash Consideration being measured at the Asset Disposition Offer Amount has been so validly tendered, all Notes time received and Pari Passu Indebtedness validly tendered without giving effect to subsequent changes in response to the Asset Disposition Offer.value); and
(i7) On consideration consisting of securities or before obligations issued, insured or unconditionally guaranteed by a government (or any agency or instrumentality thereof) of a country where the Asset Disposition Purchase DateCompany, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness Permitted Affiliate Parent or portions of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, any Restricted Subsidiary is organized or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereoflocated.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 2 contracts
Sources: Credit Agreement (Liberty Latin America Ltd.), Credit Agreement (Liberty Latin America Ltd.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Parent Guarantor will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer Parent Guarantor or such Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) such Asset Disposition at least equal to the fair market value Fair Market Value (such fair market value Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the Issuer, ) of the shares and or other assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); andDisposition;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the aggregate consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Parent Guarantor or such Restricted Subsidiary, as the case may be, from such Asset Disposition and all other Asset Dispositions since the Issue Date, on a cumulative basis, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Additional Assets, or any combination thereof; and
(c3) After except as provided in the receipt next paragraph, an amount equal to 100% of the Net Available Cash from an such Asset DispositionDisposition is applied, within 365 days from the Issuer later of the date of such Asset Disposition or a the receipt of such Net Available Cash, by the Parent Guarantor or such Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary)::
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (ia) to prepay, repay, redeem or purchase Pari Passu Indebtedness of the Parent Guarantor, the Issuer (including the Securities) or redeem a Subsidiary Guarantor or any Indebtedness incurred under Section 4.04(b)(1(other than Disqualified Stock) of a Restricted Subsidiary that is not a Subsidiary Guarantor (in each case, excluding Indebtedness owed to the Parent Guarantor or any Guarantor Indebtednessan Affiliate of the Parent Guarantor); provided, however, that, in connection with any prepayment, repayment repayment, redemption or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (a), the Issuer Parent Guarantor or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased redeemed or redeemedpurchased; or
(iib) unless included to invest in Section 4.08(c)(1)(B)(i)Additional Assets; provided that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Parent Guarantor and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in the preceding paragraph will be deemed to constitute “Excess Proceeds.” Not later than the 366th day from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $20.0 million, the Issuer will make an offer (“Asset Disposition Offer”) to all Holders of Securities and, to prepaythe extent required by the terms of other Pari Passu Indebtedness, repay, purchase or redeem any to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the Issuer to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Securities”) to purchase the maximum principal amount of Securities and any such Pari Passu Securities to which the Asset Disposition Offer applies that may be purchased out of the Issuer or any GuarantorExcess Proceeds, at a an offer price of no more than in cash in an amount equal to 100% of the principal amount (or, in the event such Pari Passu Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof) of the Securities and Pari Passu Securities plus accrued and unpaid interest, if any (or in respect of such Pari Passu Indebtedness plus accrued and unpaid interest to Indebtedness, such lesser price, if any, as may be provided for by the date terms of such prepaymentIndebtedness), repayment, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture Section 3.5 or the agreements governing the Pari Passu IndebtednessSecurities, as applicable, and in the each case of the Notes, in minimum denominations principal amount of $200,000 2,000 and in integral multiples of $1,000 in excess thereofof $2,000. No such purchase in part shall reduce If the aggregate principal amount at maturity of Securities surrendered by Holders thereof and other Pari Passu Securities surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select the Securities to be purchased on a pro rata basis on the basis of the Notes held by any holder to below $200,000aggregate principal amount of tendered Securities and Pari Passu Securities. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate principal amount of Notes Securities and Pari Passu Indebtedness Securities so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Issuer Parent Guarantor and the its Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, subject to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) . The Asset Disposition Offer, in so far as it relates to the Notes, Offer will remain open for a period of not less than 20 Business Days following its commencement or such shorter commencement, except to the extent that a longer period of time is required to comply with Section 14(e) of the Exchange Act and any other by applicable securities laws or regulations in connection with the Asset Disposition Offer law (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Securities and Pari Passu Indebtedness Securities required to be purchased by it pursuant to this Section 4.08 3.5 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tenderedtendered and not properly withdrawn, all Notes Securities and Pari Passu Indebtedness Securities validly tendered and not properly withdrawn in response to the Asset Disposition Offer.
(i) . 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, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no further interest will be payable to Holders who tender Securities pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes Securities and Pari Passu Indebtedness Securities or portions of Notes Securities and Pari Passu Indebtedness Securities 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 Notes Securities and Pari Passu Indebtedness Securities so validly tendered and not properly withdrawn andwithdrawn, in the each case of the Notes, in minimum denominations principal amount of $200,000 2,000 and in integral multiples of $1,000 in excess thereof.
(j) of $2,000. The Issuer will deliver to the Trustee an Officer’s Officers’ Certificate stating that such Notes Securities or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 43.5 and, in addition, the Issuer will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Securities. The Issuer or the paying agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Disposition Offer Period) mail or deliver to each tendering Holder of Securities or holder or lender of Pari Passu Securities, as the case may be, an amount equal to the purchase price of the Securities or Pari Passu Securities so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Issuer for purchase, and the Issuer will promptly issue a new Security, and the Trustee, upon delivery of an Officers’ Certificate from the Issuer, 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 minimum principal amount of $2,000 or an integral multiple of $1,000 in excess of $2,000. In addition, the Issuer will take any and all other actions required by the agreements governing the Pari Passu Securities. Any Security not so accepted will be promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date. The Issuer will comply, to the extent applicable, with the requirements of Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Securities pursuant to an Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 3.5, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of its compliance with such securities laws or regulations. For the purposes of clause (2) of the first paragraph of this Section 3.5, the following will be deemed to be cash:
(1) the assumption by the transferee of Indebtedness (other than Guarantor Subordinated Obligations or Disqualified Stock) of the Parent Guarantor or Indebtedness of a Restricted Subsidiary (other than Subordinated Obligations or Disqualified Stock of the Issuer and Guarantor Subordinated Obligations or Disqualified Stock of any Restricted Subsidiary that is a Subsidiary Guarantor) and the release of the Parent Guarantor or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition (in which case the Parent Guarantor will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with clause (3)(a) of the first paragraph of this Section 3.5; and
(2) securities, notes or other obligations received by the Parent Guarantor or any Restricted Subsidiary from the transferee that are converted by the Parent Guarantor or such Restricted Subsidiary into cash within 180 days after receipt thereof. Notwithstanding the foregoing, the 75% limitation referred to in clause (2) of the first paragraph of this Section 3.5 shall be deemed satisfied with respect to any Asset Disposition in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with the foregoing provision on an after-tax basis, is equal to or greater than what the after-tax proceeds would have been had such Asset Disposition complied with the aforementioned 75% limitation. The requirement of clause (3)(b) of the first paragraph of this Section 3.5 shall be deemed to be satisfied if an agreement (including a lease, whether a capital lease or an operating lease) committing to make the acquisitions or expenditures referred to therein is entered into by the Parent Guarantor or its Restricted Subsidiary within the specified time period and such Net Available Cash is subsequently applied in accordance with such agreement within six months following such agreement. The Parent Guarantor will not, and will not permit any Restricted Subsidiary to, engage in any Asset Swaps, unless:
(1) at the time of entering into such Asset Swap and immediately after giving effect to such Asset Swap, no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(2) in the event such Asset Swap involves the transfer by the Parent Guarantor or any Restricted Subsidiary of assets having an aggregate Fair Market Value in excess of $20.0 million, the terms of such Asset Swap have been approved by a majority of the members of the Board of Directors of the Parent Guarantor.
Appears in 2 contracts
Sources: Indenture (Antero Resources LLC), Indenture (Antero Resources Finance Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the IssuerIssuer or the relevant Restricted Subsidiary, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.; and
(c3) After the receipt (A) in respect of Net Available Cash from an Asset DispositionDispositions in any Non-Core Market, the Issuer or a Restricted Subsidiaryaggregate amount of Asset Dispositions made since the Issue Date in all Non-Core Markets would not exceed €300 million and (B) in respect of Asset Dispositions in any Core Market, as the aggregate amount of Asset Dispositions made in all Core Markets would not exceed 3% of Book Value per fiscal year; provided that, in the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later each of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer amount of Asset Dispositions by a Majority Co-Investment Vehicle or such a Fund Co-Investment Vehicle or any Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to thereof shall be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later product of (i) the date aggregate amount of such the net proceeds of the Asset Disposition and (ii) the receipt direct or indirect proportionate economic interest of Midco in such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement Majority Co-Investment Vehicle or Fund Co-Investment Vehicle or a commitment approved by Subsidiary thereof which is a Restricted Subsidiary. For purposes of determining compliance with the Board provisions of Directors this Section 4.07, the euro equivalent of any Indebtedness denominated in another currency shall be calculated based on the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) relevant currency exchange rate in effect on the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenturewas Incurred.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(eb) [Reserved].
(fc) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds[Reserved].
(gd) To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than dollarsthe currency in which the relevant Notes are denominated, the amount thereof payable in respect of the such Notes shall not exceed the net Dollar Equivalent amount of funds in the amount currency in which such Notes are denominated that is actually received by the IssuerIssuer upon converting such portion into such currency.
(e) [Reserved].
(f) [Reserved].
(g) For the purposes of Section 4.07(a)(2), the following will be deemed to be cash:
(1) the assumption by the transferee of Indebtedness of the Company or Indebtedness of a Restricted Subsidiary (other than Subordinated Indebtedness of the Issuer or a Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition;
(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; provided that such Indebtedness is not, directly or indirectly, secured by any Lien on any of the assets or property of the Company and its Restricted Subsidiaries (including Capital Stock of a Restricted Subsidiary of the Company);
(4) consideration consisting of Indebtedness of the Company (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company or any Restricted Subsidiary;
(5) any Designated Non-Cash Consideration received by the Company or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section 4.07 that is at that time outstanding, not to exceed the greater of €[•] and 1.5% of Total Assets (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); and
(6) any Capital Stock or Additional Assets.
(h) The Asset Disposition OfferIssuer will comply, in so far as it relates to the Notesextent applicable, will remain open for a period with the requirements of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations (or rules of any exchange on which the Notes are then listed) in connection with the Asset Disposition Offer repurchase of Notes pursuant to this Indenture. To the extent that the provisions of any securities laws or regulations (the “Asset Disposition Offer Period”). No later than five (5or exchange rules) Business Days after the termination conflict with provisions of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”)this Section 4.07, the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance comply with the terms applicable securities laws and regulations (or exchange rules) and will not be deemed to have breached its obligations under this Indenture by virtue of this Section 4any conflict.
Appears in 2 contracts
Sources: Indenture (Intrum ZRT), Indenture (Intrum ZRT)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company and any Permitted Affiliate Parent will not, and will not permit any of its the Restricted Subsidiaries to, without the consent of the Required Lenders, make any Asset Disposition unless:
(1) the Issuer Company, such Permitted Affiliate Parent 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 conclusively in good faith by an Officer or the Board of Directors or senior management of the IssuerCompany or such Permitted Affiliate Parent (including as to the value of all non-cash consideration), of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); andDisposition;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent unless the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company, such Permitted Affiliate Parent or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) is reinvested or applied to prepay the receipt of such Net Available Cash (i) to prepay, repay, purchase Loans or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Other Applicable Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount in accordance with Section 2.05(b)(i) of Notes at least equal this Agreement.
(b) For the purposes of this Section 4.10, the following will be deemed to the proportion that be cash:
(x1) the total aggregate principal amount assumption by the transferee of Notes outstanding bears to Indebtedness (yother than Subordinated Obligations) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase any Loan Party or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor Loan Party and the release of such Loan Party or any such Restricted Subsidiary from all liability on such Indebtedness that is secured on assets in connection with such Asset Disposition (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on which case the relevant record date Borrower will, without further action, be deemed to receive interest due on the relevant interest payment datehave applied such deemed cash to Indebtedness in accordance with Section 2.05(b)(i) or (v) to redeem the Notes as described under Section 3.07of this Agreement);
(2) to securities, notes or other obligations received by the extent Company, a Permitted Affiliate Parent or any Restricted Subsidiary from the Issuer transferee that are convertible by the Company, such Permitted Affiliate Parent or such Restricted Subsidiary elects, to invest in into cash or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by Equivalents within 180 days following the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date closing of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th dayDisposition;
(3) to make Indebtedness of any Restricted Subsidiary that is no longer a capital expenditure within 365 days from the later of (A) the date Restricted Subsidiary as a result of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes andDisposition, to the extent that the Issuer or a Guarantor electsCompany, or the Issuer or a Guarantor is required by the terms any Permitted Affiliate Parent and each other Restricted Subsidiary are released from any guarantee of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% payment of the principal amount of such Notes and 100Indebtedness in connection with such Asset Disposition;
(4) consideration consisting of Indebtedness of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary;
(5) any Designated Non-Cash Consideration received by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value not to exceed 25.0% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, consideration from such Asset Disposition (excluding any consideration received from such Asset Disposition in accordance with Section 4.10(b)(1) to Section 4.10(b)(4)) (with the procedures set forth 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 this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and value);
(6) in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect addition to any Net Available Designated Non-Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn Consideration received pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance PortionSection 4.10(b)(5), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Designated Non-Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually Consideration received by the Issuer.
(h) The Company, a Permitted Affiliate Parent or any Restricted Subsidiary in such Asset Disposition OfferDispositions having an aggregate fair market value, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply taken together with Section 14(e) of the Exchange Act and any all other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it Designated Non-Cash Consideration received pursuant to this Section 4.08 4.10(b)(6) that is at that time outstanding, not to exceed the greater of $250.0 million and 5.0% of Total Assets (with the “Asset Disposition Offer Amount”) or, if less than fair market value of each item of Designated Non-Cash Consideration being measured at the Asset Disposition Offer Amount has been so validly tendered, all Notes time received and Pari Passu Indebtedness validly tendered without giving effect to subsequent changes in response to the Asset Disposition Offer.value); and
(i7) On consideration consisting of securities or before obligations issued, insured or unconditionally guaranteed by a government (or any agency or instrumentality thereof) of a country where the Asset Disposition Purchase DateCompany, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness Permitted Affiliate Parent or portions of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, any Restricted Subsidiary is organized or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereoflocated.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 2 contracts
Sources: Credit Agreement (Liberty Latin America Ltd.), Credit Agreement (Liberty Latin America Ltd.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1i) the Issuer 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 an Officer or the Board of Directors of the IssuerCompany, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2ii) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.; and
(ciii) After an amount equal to 100% of the receipt of Net Available Cash from an such Asset DispositionDisposition is applied by the Company or such Restricted Subsidiary, as the Issuer case may be:
(A) to the extent the Company or a any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects (or indirectly (at is required by the option terms of the Issuer or such any Indebtedness of a Restricted Subsidiary):
), (1) to prepay, repay or purchase any Indebtedness of a non-Guarantor Restricted Subsidiary (in each case, other than Indebtedness owed to the Company or any Restricted Subsidiary) or Indebtedness under the Revolving Credit Agreement or the Super Priority Notes within 365 days from the later of (Ax) the date of such Asset Disposition and (By) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, that such prepayment shall only be required after the Company and the Co-Borrower have complied with Section 10.5(b)(ii) and in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iparagraph (A), the Issuer Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtednessthe Revolving Credit Agreement) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; or (ii2) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, repay or purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase repayment or redemptionpurchase; provided that the Issuer or such Guarantor, as applicable, Company shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause sub-paragraph (iiA) only if the Issuer Company makes (at such time or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes subsequently in compliance with this Section 10.5) an offer to the Holders of the Notes Lenders to purchase their Notes at a purchase price Loans in cash equal to at least 100% of accordance with the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, provisions set forth below for an Asset Disposition Offer for an aggregate principal amount of Notes Loans at least equal to the proportion that (x) the total aggregate principal amount of Notes Loans outstanding bears to (y) the sum of the total aggregate principal amount of Notes Loans outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;or
(2B) to the extent the Issuer Company or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 days from the later of (i1) the date of such Asset Disposition and (ii2) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer Company that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
provided that to the extent that any disposition in such Asset Sale was of Collateral, the assets (4including Voting Stock) any combination of clauses (1) through (3) of Section 4.08(c)acquired with the Net Cash Proceeds thereof shall, subject to the Agreed Security Principles, be pledged as Collateral under the Security Documents substantially simultaneously with such acquisition; provided that, pending the final application of any such Net Available Cash in accordance with clauses paragraph (1), (2), (3A) or paragraph (4B) of Section 4.08(c)above, the Issuer Company and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this IndentureAgreement.
(db) (i) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(cclause (a) above will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such an Asset Disposition and (B) the receipt of such Net Available CashDisposition, if the aggregate amount of Excess Proceeds exceeds $100 million€50,000,000, the Issuer will Borrowers will, subject to sub-clause (i) below, be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes Lenders and, to the extent the Issuer or a Guarantor Company elects, or the Issuer or a Guarantor is required by the terms to all holders of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes Loans and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes Loans in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes the Loans and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture herein or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 2 contracts
Sources: Secured Term Credit Agreement (NXP Semiconductors N.V.), Secured Term Credit Agreement (NXP Semiconductors N.V.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unlessunless :
(1) the Issuer 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 an Officer or the Board of Directors (including as to the value of the Issuerall non-cash consideration), of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); andDisposition;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After an amount equal to 100% of the receipt of Net Available Cash from an such Asset Disposition, Disposition is applied by the Issuer Company or a such Restricted Subsidiary, as the case may be:
(a) to prepay, may apply such Net Available Cash directly repay or indirectly (at the option purchase secured Indebtedness of the Issuer Company (other than any Disqualified Stock or such Restricted Subsidiary):
Subordinated Obligations) or secured Indebtedness of a Wholly Owned Subsidiary (1other than any Disqualified Stock or Guarantor Subordinated Obligations of a Subsidiary Guarantor) (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 365 360 days from the later of (A) the date of such Asset Disposition and (B) or the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (a), the Issuer Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;and
(2b) to the extent of the Issuer balance of such Net Available Cash after any application in accordance with clause (a), to the extent the Company or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 360 days from the later of (i) the date of such Asset Disposition and (ii) or the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made Cash or pursuant to a definitive binding agreement or a commitment approved by arrangements in place within the Board of Directors of 360 day period (to the Issuer that is executed or approved extent such arrangements are completed within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 90 days after execution of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Casharrangement); provided, however, provided that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses clause (1), (2), (3a) or clause (4b) of Section 4.08(c)above, the Issuer Company and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) . Any Net Available Cash from Asset Dispositions that is not applied or invested (or committed to be applied or invested under arrangement for investment as provided in Section 4.08(cclause (b) will above) as provided in the preceding paragraph shall be deemed to constitute “Excess Proceeds.” On the 366th 361st day after an Asset Disposition (or the 546th daysuch later date, if applicable, after giving effect to arrangements for investment in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2b) or (3) of Section 4.08(cabove)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 10.0 million, the Issuer will Company shall be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders Holders of the Notes and, Securities and to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”), to purchase the maximum principal amount of such Notes Securities and any such Pari Passu Indebtedness Notes to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes cash in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes the Securities and 100% of the principal amount of Pari Passu Indebtedness, in each case, Notes plus accrued and unpaid interest, if any, to, but not including, interest to the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu IndebtednessNotes, as applicable, and in the each case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof1,000. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes Securities and Pari Passu Indebtedness Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Issuer and the Restricted Subsidiaries Company may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, subject to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes Securities surrendered in any Asset Disposition Offer by Holders thereof and other Pari Passu Indebtedness Notes surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), Trustee shall select the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes Securities and Pari Passu Indebtedness Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes Securities and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)Notes. Upon completion of any such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) . The Asset Disposition Offer, in so far as it relates to the Notes, will Offer shall remain open for a period of not less than 20 Business Days following its commencement or such shorter commencement, except to the extent that a longer period of time is required to comply with Section 14(e) of the Exchange Act and any other by applicable securities laws or regulations in connection with the Asset Disposition Offer law (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer Company will purchase the principal amount of Notes and, to the extent it elects, Securities and Pari Passu Indebtedness Notes required to be purchased by it pursuant to this Section 4.08 covenant (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes Securities and Pari Passu Indebtedness Notes validly tendered in response to the Asset Disposition Offer.
(i) . 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 shall 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 shall be payable to Holders who tender Securities pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Issuer willCompany shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes Securities and Pari Passu Indebtedness Notes or portions of Notes Securities and Pari Passu Indebtedness Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes Securities and Pari Passu Indebtedness Notes so validly tendered and not properly withdrawn andwithdrawn, in the each case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) 1,000. The Issuer will Company shall deliver to the Trustee an Officer’s Officers’ Certificate stating that such Notes Securities or portions thereof were accepted for payment by the Issuer Company in accordance with the terms of this Section 4covenant and, in addition, the Company shall deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. The Company or the Paying Agent, as the case may be, shall 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 or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Securities or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Security, and the Trustee, upon delivery of an Officers’ Certificate from the Company, shall 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 $1,000 or an integral multiple of $1,000. In addition, the Company shall take any and all other actions required by the agreements governing the Pari Passu Notes. Any Security not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date. For the purposes of this covenant, the following shall 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 Wholly Owned Subsidiary (other than Guarantor Subordinated Obligations or Disqualified Stock of any 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 clause (a) above); 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. The Company shall comply, to the extent applicable, with the requirements of Rule 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 covenant, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Indenture by virtue of any conflict.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The From and after the Escrow Release Date, the Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer or such Restricted Subsidiary, as the case may beapplicable, 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 an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(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 (x) $60.0 million and (y) 20.0% of LTM EBITDA, at least 75% of the consideration from such Asset Disposition Disposition, together with all other Asset Dispositions since the Escrow Release Date as to which this clause (2) applies (on a cumulative basis), received by the Issuer or such series Restricted Subsidiary, as applicable, is in the form of related Asset Dispositions cash or Cash Equivalents; provided that, for purposes of this clause (excluding any consideration 2), the following shall be deemed to be cash:
(i) the assumption by the transferee of Indebtedness or other liabilities (including by way of relief from, or by any other Person assuming responsibility for, any such Indebtedness or other liabilities, contingent or otherwise, ) of the Issuer or a Restricted Subsidiary (other than Indebtedness), together Subordinated Indebtedness of the Issuer or a Guarantor) or the release of the Issuer or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset SwapDisposition;
(ii) on a cumulative basis securities, notes or other obligations or other property received by the Issuer or any Restricted Subsidiary from the transferee that are converted by the Issuer or such Restricted SubsidiarySubsidiary into cash or Cash Equivalents, as the case may be, is in the form of cash, or by their terms are required to be satisfied for cash and Cash Equivalents (to the extent of the cash or Temporary Cash Investments.Equivalents received), in each case, within 365 days following the closing of such Asset Disposition;
(ciii) After the receipt Indebtedness of Net Available Cash from an any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that, immediately following such Asset Disposition, neither the Issuer nor any other Restricted Subsidiary Guarantees the payment of such Indebtedness;
(iv) consideration consisting of Indebtedness of the Issuer (other than Subordinated Indebtedness) received after the Escrow Release Date from Persons who are not the Issuer or a any Restricted Subsidiary, as the case may be, may apply such Net Available ; and
(v) any Designated Non-Cash directly or indirectly (at the option of Consideration received by the Issuer or any Restricted Subsidiary in such Restricted Subsidiary):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 (x) $67.5 million and (y) 22.5% 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; and
(13) within 365 540 days from the later of (A) the date of such Asset Disposition and (B) the receipt of the Net Available Cash from such Asset Disposition (as may be extended by an Acceptable Commitment as set forth below, the “Proceeds Application Period”), an amount equal to the Applicable Percentage of such Net Available Cash (the “Applicable Proceeds”) is applied, to the extent the Issuer or any Restricted Subsidiary, as applicable, elects:
(i) (a) to reduce, prepay, repayrepay or purchase any Secured Indebtedness, including Indebtedness under the Credit Agreement (or any Refinancing Indebtedness in respect thereof), (b) to reduce, prepay, repay or purchase Pari Passu Indebtedness; provided that in connection with this subclause (b), the Issuer ratably repays the Notes, (c) to make an offer (in accordance with the procedures pursuant to an Asset Disposition Offer) to redeem Notes pursuant to Section 5.07 or redeem purchase Notes; or (d) to reduce, prepay, repay or purchase any Indebtedness incurred under Section 4.04(b)(1) of a Non-Guarantor (in each case, other than Indebtedness owed to the Issuer or any Guarantor IndebtednessRestricted Subsidiary); provided that to the extent the Issuer or any Restricted Subsidiary makes an offer to reduce, prepay, repay or purchase any obligations pursuant to the foregoing subclauses (a)-(d) at a price no less than 100% of the principal amount thereof, to the extent the relevant creditors do not accept such offering, the Issuer and the Restricted Subsidiaries will be deemed to have applied an amount of the Applicable Proceeds equal to such amount not so accepted in such offer, and such amount shall not increase the amount of Excess Proceeds (and such amount shall instead constitute Declined Excess Proceeds); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except other than obligations in the case respect of any revolving Indebtednessasset-based credit facility to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to be permanently reduced in an amount equal to the principal amount so reduced, prepaid, repaid, purchased repaid or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07purchased;
(2a) to the extent the Issuer or such Restricted Subsidiary elects, to invest (including capital expenditures) in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by Subsidiary); or (b) to invest (including capital expenditures) in any one or more businesses, properties or assets that replace the Issuer or another Restricted Subsidiary) within 365 days from businesses, properties and/or assets that are the later of (i) the date subject of such Asset Disposition and Disposition, with any such investment made by way of a capital or other lease valued at the present value of the minimum amount of payments under such lease (ii) as reasonably determined by the receipt of such Net Available CashIssuer); provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or shall be treated as a commitment approved by the Board permitted application of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days Applicable Proceeds from the later of (A) the date of such Asset Disposition and (B) commitment with the receipt of good faith expectation that an amount equal to Applicable Proceeds will be applied to satisfy such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days after the end of such 365th day540-day period (an “Acceptable Commitment”);
(iii) to make any other Permitted Investment; or
(4iv) any combination of clauses the foregoing; provided that (1) through (3) of Section 4.08(c), provided that, pending the final application of the amount of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Applicable Proceeds pursuant to this Section 4.08(c)3.05, the Issuer and or the applicable Restricted Subsidiaries may apply such Applicable Proceeds temporarily to reduce Indebtedness (including under the Credit Facilities) or otherwise invest apply such Net Available Cash Applicable Proceeds in any manner not prohibited by this Indenture.
, and (d2) Any Net Available Cash from the Issuer (or any Restricted Subsidiary, as applicable) may elect to invest in Additional Assets prior to receiving the Applicable Proceeds attributable to any given Asset Dispositions Disposition (provided that is not applied or 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 or committed to be applied or invested as provided pursuant to and in Section 4.08(caccordance with clause (ii) will be deemed above with respect to constitute such Asset Disposition. If, with respect to any Asset Disposition, at the expiration of the Proceeds Application Period with respect to such Asset Disposition, there remains Applicable Proceeds in excess of the greater of (i) $90.0 million and (ii) 30.0% of LTM EBITDA (such amount of Applicable Proceeds that are equal to the greater of (i) $90.0 million and (ii) 30.0% of LTM EBITDA, “Declined Excess Proceeds,” and such amount of Applicable Proceeds that are in excess of the greater of (i) $90.0 million and (ii) 30.0% of LTM EBITDA, “Excess Proceeds.” On ”), then subject to the 366th day (or the 546th day, in the case of any Net Available Cash committed limitations with respect to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 millionForeign Dispositions set forth below, the Issuer will be required within ten (10) Business Days thereof to shall make an offer (an “Asset Disposition Offer”) no later than ten Business Days after the expiration of the Proceeds Application Period to all holders Holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is if required by the terms of other outstanding any Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness Indebtedness, to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies Indebtedness, as appropriate, on a pro rata basis, that may be purchased out of the such Excess Proceeds, if any, at an offer price price, in respect the case of the Notes Notes, in cash in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of thereof (or in the event such Notes and other Indebtedness was issued with original issue discount, 100% of the principal amount of Pari Passu Indebtedness, in each caseaccreted value thereof), plus accrued and unpaid 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 or and the agreements agreement governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 2,000 and in integral multiples of $1,000 in excess thereof. No such 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 in part shall reduce the principal amount at maturity date to each Holder of the Notes held by any holder at such Holder’s registered address, with a copy to below $200,000the Trustee, or otherwise in accordance with the applicable procedures of DTC. The Issuer may satisfy the foregoing obligations obligation with respect to any Net Available Cash from an Asset Disposition the Applicable Proceeds by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture expiration of the Proceeds Application Period (the “Advance Offer”) with respect to all or a part of the available Net Available Cash Applicable Proceeds (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”)Indenture.
(e) [Reserved].
(fb) To the extent that the aggregate amount (or accreted value, as applicable) of Notes and and, if applicable, any other Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to or otherwise surrendered in connection with an Asset Disposition Offer is less than the made with Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)) is less than the amount offered in an Asset Disposition Offer, the Issuer and the Restricted Subsidiaries may use include any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) in Declined Excess Proceeds, and use such Declined Excess Proceeds for general corporate purposes, to the extent any purpose not otherwise prohibited by the other covenants contained in this Indenture. If the aggregate principal amount (or accreted value, as applicable) of the Notes surrendered in or, if applicable, Pari Passu Indebtedness validly tendered pursuant to any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer shall allocate the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount (or accreted value, as applicable) of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such ; provided that no Notes or other Pari Passu Indebtedness not denominated will be selected and purchased in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)an unauthorized denomination. Upon completion of any Asset Disposition Offer, the amount of Applicable Proceeds and Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) . To the extent that any portion of Net Available Cash or Applicable Proceeds payable in respect of the Notes is denominated in a currency other than dollarsDollars, the amount thereof payable in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in Dollars that is actually received by the IssuerIssuer upon converting such portion into Dollars.
(hc) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and Notwithstanding any other applicable securities laws or regulations in connection with the Asset Disposition Offer provisions of this Section 3.05, (the “Asset Disposition Offer Period”). No later than five (5i) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it electsthat any of or all the Net Available Cash or Applicable Proceeds of any Asset Disposition is received or deemed to be received by a Non-U.S. Subsidiary (or a U.S. Subsidiary of a Non-U.S. Subsidiary) (a “Foreign Disposition”) giving rise to a prepayment event described above is (x) prohibited, Pari Passu Indebtedness restricted or delayed by applicable local law, rule or regulation (including, without limitation, (a) financial assistance and corporate benefit restrictions and (b) fiduciary and statutory duties of any director or officer of such Subsidiaries), (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 or otherwise paid to the Issuer or so prepaid, or such repatriation or payment or prepayment would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officer), an amount equal to the portion of such Net Available Cash so affected will not be required to be purchased by it pursuant to applied in compliance with this Section 4.08 3.05; and (the “Asset Disposition Offer Amount”ii) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawfulthat the Issuer has determined in good faith that repatriation of any of or all the Net Available Cash of any Foreign Disposition could have an adverse Tax consequence (which for the avoidance of doubt, accept for paymentincludes, on but is not limited to, any prepayment out of such Net Available Cash whereby doing so the Issuer, any of its Subsidiaries, any Parent Entity or any of their respective affiliates and/or equity owners would incur a pro rata basis to the extent necessaryTax liability, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
including a taxable dividend) (j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment as determined by the Issuer in accordance good faith), an amount equal to the Net Available Cash so affected will not be required to be applied in compliance with this Section 3.05. 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.
(d) To the extent that the provisions of any securities laws or regulations, including Rule 14e-1 under the Exchange Act, conflict with the terms provisions of this Section 4Indenture, the Issuer shall not be deemed to have breached its obligations described in this Indenture by virtue of compliance therewith. The Issuer may rely on any no-action letters issued by the SEC indicating that the staff of the SEC will not recommend enforcement action in the event a tender offer satisfies certain conditions.
(e) The provisions of this Indenture relative to the Issuer’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 principal amount of the Notes then outstanding.
Appears in 1 contract
Sources: Indenture (Knife River Holding Co)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer or such Restricted Subsidiary, as the case may beapplicable, 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 an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(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 (x) $138.0 million and (y) 20.0% of LTM EBITDA, at least 75% of the consideration from such Asset Disposition Disposition, together with all other Asset Dispositions since the Issue Date as to which this clause (2) applies (on a cumulative basis), received by the Issuer or such series Restricted Subsidiary, as applicable, is in the form of related Asset Dispositions cash or Cash Equivalents; provided that, for purposes of this clause (excluding any consideration 2), the following shall be deemed to be cash:
(i) the assumption by the transferee of Indebtedness or other liabilities (including by way of relief from, or by any other Person assuming responsibility for, any such Indebtedness or other liabilities, contingent or otherwise, ) of the Issuer or a Restricted Subsidiary (other than Indebtedness), together Subordinated Indebtedness of the Issuer or a Guarantor) or the release of the Issuer or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset SwapDisposition;
(ii) on a cumulative basis securities, notes or other obligations or other property received by the Issuer or any Restricted Subsidiary from the transferee that are converted by the Issuer or such Restricted SubsidiarySubsidiary into cash or Cash Equivalents, as the case may be, is in the form of cash, or by their terms are required to be satisfied for cash and Cash Equivalents (to the extent of the cash or Temporary Cash Investments.Equivalents received), in each case, within 365 days following the closing of such Asset Disposition;
(ciii) After the receipt Indebtedness of Net Available Cash from an any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that, immediately following such Asset Disposition, neither the Issuer nor any other Restricted Subsidiary Guarantees the payment of such Indebtedness;
(iv) consideration consisting of Indebtedness of the Issuer (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Issuer or a any Restricted Subsidiary, as the case may be, may apply such Net Available ; and
(v) any Designated Non-Cash directly or indirectly (at the option of Consideration received by the Issuer or any Restricted Subsidiary in such Restricted Subsidiary):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 (x) $156.0 million and (y) 22.5% 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; and
(13) within 365 540 days from the later of (A) the date of such Asset Disposition and (B) the receipt of the Net Available Cash from such Asset Disposition (as may be extended by an Acceptable Commitment as set forth below, the “Proceeds Application Period”), an amount equal to the Applicable Percentage of such Net Available Cash (the “Applicable Proceeds”) is applied, to the extent the Issuer or any Restricted Subsidiary, as applicable, elects:
(i) (a) to reduce, prepay, repayrepay or purchase any Secured Indebtedness, including Indebtedness under the Credit Agreement (or any Refinancing Indebtedness in respect thereof), (b) to reduce, prepay, repay or purchase Pari Passu Indebtedness; provided that in connection with this subclause (b), the Issuer ratably repays the Notes, (c) to make an offer (in accordance with the procedures pursuant to an Asset Disposition Offer) to redeem Notes pursuant to Section 5.07 or redeem purchase Notes; or (d) to reduce, prepay, repay or purchase any Indebtedness incurred under Section 4.04(b)(1) of a Non-Guarantor (in each case, other than Indebtedness owed to the Issuer or any Guarantor IndebtednessRestricted Subsidiary); provided that to the extent the Issuer or any Restricted Subsidiary makes an offer to reduce, prepay, repay or purchase any obligations pursuant to the foregoing subclauses (a)-(d) at a price no less than 100% of the principal amount thereof, to the extent the relevant creditors do not accept such offering, the Issuer and the Restricted Subsidiaries will be deemed to have applied an amount of the Applicable Proceeds equal to such amount not so accepted in such offer, and such amount shall not increase the amount of Excess Proceeds (and such amount shall instead constitute Declined Excess Proceeds); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except other than obligations in the case respect of any revolving Indebtednessasset-based credit facility to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to be permanently reduced in an amount equal to the principal amount so reduced, prepaid, repaid, purchased repaid or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07purchased;
(2a) to the extent the Issuer or such Restricted Subsidiary elects, to invest (including capital expenditures) in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by Subsidiary); or (b) to invest (including capital expenditures) in any one or more businesses, properties or assets that replace the Issuer or another Restricted Subsidiary) within 365 days from businesses, properties and/or assets that are the later of (i) the date subject of such Asset Disposition and Disposition, with any such investment made by way of a capital or other lease valued at the present value of the minimum amount of payments under such lease (ii) as reasonably determined by the receipt of such Net Available CashIssuer); provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or shall be treated as a commitment approved by the Board permitted application of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days Applicable Proceeds from the later of (A) the date of such Asset Disposition and (B) commitment with the receipt of good faith expectation that an amount equal to Applicable Proceeds will be applied to satisfy such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days after the end of such 365th day540-day period (an “Acceptable Commitment”);
(iii) to make any other Permitted Investment; or
(4iv) any combination of clauses the foregoing; provided that (1) through (3) of Section 4.08(c), provided that, pending the final application of the amount of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Applicable Proceeds pursuant to this Section 4.08(c)3.05, the Issuer and or the applicable Restricted Subsidiaries may apply such Applicable Proceeds temporarily to reduce Indebtedness (including under the Credit Facilities) or otherwise invest apply such Net Available Cash Applicable Proceeds in any manner not prohibited by this Indenture.
, and (d2) Any Net Available Cash from the Issuer (or any Restricted Subsidiary, as applicable) may elect to invest in Additional Assets prior to receiving the Applicable Proceeds attributable to any given Asset Dispositions Disposition (provided that is not applied or 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 or committed to be applied or invested as provided pursuant to and in Section 4.08(caccordance with clause (ii) will be deemed above with respect to constitute such Asset Disposition. If, with respect to any Asset Disposition, at the expiration of the Proceeds Application Period with respect to such Asset Disposition, there remains Applicable Proceeds in excess of the greater of (i) $207.0 million and (ii) 30.0% of LTM EBITDA (such amount of Applicable Proceeds that are equal to the greater of (i) $207.0 million and (ii) 30.0% of LTM EBITDA, “Declined Excess Proceeds,” and such amount of Applicable Proceeds that are in excess of the greater of (i) $207.0 million and (ii) 30.0% of LTM EBITDA, “Excess Proceeds.” On ”), then subject to the 366th day (or the 546th day, in the case of any Net Available Cash committed limitations with respect to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 millionForeign Dispositions set forth below, the Issuer will be required within ten (10) Business Days thereof to shall make an offer (an “Asset Disposition Offer”) no later than ten Business Days after the expiration of the Proceeds Application Period to all holders Holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is if required by the terms of other outstanding any Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness Indebtedness, to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies Indebtedness, as appropriate, on a pro rata basis, that may be purchased out of the such Excess Proceeds, if any, at an offer price price, in respect the case of the Notes Notes, in cash in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of thereof (or in the event such Notes and other Indebtedness was issued with original issue discount, 100% of the principal amount of Pari Passu Indebtedness, in each caseaccreted value thereof), plus accrued and unpaid 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 or and the agreements agreement governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 2,000 and in integral multiples of $1,000 in excess thereof. No such 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 in part shall reduce the principal amount at maturity date to each Holder of the Notes held by any holder at such Holder’s registered address, with a copy to below $200,000the Trustee, or otherwise in accordance with the applicable procedures of DTC. The Issuer may satisfy the foregoing obligations obligation with respect to any Net Available Cash from an Asset Disposition the Applicable Proceeds by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture expiration of the Proceeds Application Period (the “Advance Offer”) with respect to all or a part of the available Net Available Cash Applicable Proceeds (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”)Indenture.
(e) [Reserved].
(fb) To the extent that the aggregate amount (or accreted value, as applicable) of Notes and and, if applicable, any other Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to or otherwise surrendered in connection with an Asset Disposition Offer is less than the made with Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)) is less than the amount offered in an Asset Disposition Offer, the Issuer and the Restricted Subsidiaries may use include any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) in Declined Excess Proceeds, and use such Declined Excess Proceeds for general corporate purposes, to the extent any purpose not otherwise prohibited by the other covenants contained in this Indenture. If the aggregate principal amount (or accreted value, as applicable) of the Notes surrendered in or, if applicable, Pari Passu Indebtedness validly tendered pursuant to any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer shall allocate the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount (or accreted value, as applicable) of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such ; provided that no Notes or other Pari Passu Indebtedness not denominated will be selected and purchased in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)an unauthorized denomination. Upon completion of any Asset Disposition Offer, the amount of Applicable Proceeds and Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) . To the extent that any portion of Net Available Cash or Applicable Proceeds payable in respect of the Notes is denominated in a currency other than dollarsDollars, the amount thereof payable in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in Dollars that is actually received by the IssuerIssuer upon converting such portion into Dollars.
(hc) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and Notwithstanding any other applicable securities laws or regulations in connection with the Asset Disposition Offer provisions of this Section 3.05, (the “Asset Disposition Offer Period”). No later than five (5i) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it electsthat any of or all the Net Available Cash or Applicable Proceeds of any Asset Disposition is received or deemed to be received by a Non-U.S. Subsidiary (or a U.S. Subsidiary of a Non-U.S. Subsidiary) (a “Foreign Disposition”) giving rise to a prepayment event described above is (x) prohibited, Pari Passu Indebtedness restricted or delayed by applicable local law, rule or regulation (including, without limitation, (a) financial assistance and corporate benefit restrictions and (b) fiduciary and statutory duties of any director or officer of such Subsidiaries), (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 or otherwise paid to the Issuer or so prepaid, or such repatriation or payment or prepayment would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officer), an amount equal to the portion of such Net Available Cash so affected will not be required to be purchased by it pursuant to applied in compliance with this Section 4.08 3.05; and (the “Asset Disposition Offer Amount”ii) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawfulthat the Issuer has determined in good faith that repatriation of any of or all the Net Available Cash of any Foreign Disposition could have an adverse Tax consequence (which for the avoidance of doubt, accept for paymentincludes, on but is not limited to, any prepayment out of such Net Available Cash whereby doing so the Issuer, any of its Subsidiaries, any Parent Entity or any of their respective affiliates and/or equity owners would incur a pro rata basis to the extent necessaryTax liability, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
including a taxable dividend) (j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment as determined by the Issuer in accordance good faith), an amount equal to the Net Available Cash so affected will not be required to be applied in compliance with this Section 3.05. 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.
(d) To the extent that the provisions of any securities laws or regulations, including Rule 14e-1 under the Exchange Act, conflict with the terms provisions of this Section 4Indenture, the Issuer shall not be deemed to have breached its obligations described in this Indenture by virtue of compliance therewith. The Issuer may rely on any no-action letters issued by the SEC indicating that the staff of the SEC will not recommend enforcement action in the event a tender offer satisfies certain conditions.
(e) The provisions of this Indenture relative to the Issuer’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 principal amount of the Notes then outstanding.
Appears in 1 contract
Sources: Indenture (Insulet Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary or American Capital Asset Management, LLC to, make any Asset Disposition unless:
(1) the Issuer Company, any Restricted Subsidiary or such Restricted SubsidiaryAmerican Capital Asset Management, LLC, 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 Fair Market Value (such fair market value Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the Issuer, ) of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company, any Restricted Subsidiary or such Restricted SubsidiaryAmerican Capital Asset Management, LLC, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After an amount equal to 100% of the receipt of Net Available Cash from an such Asset DispositionDisposition is applied by the Company, the Issuer any Restricted Subsidiary or a Restricted SubsidiaryAmerican Capital Asset Management, LLC, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary)::
(1i) to the extent the Company, any Restricted Subsidiary or American Capital Asset Management, LLC,as the case may be, elects (or is required by the terms of any Indebtedness), (A) to prepay, repay or purchase any Indebtedness of a Non-Guarantor (other than an Unrestricted Subsidiary) or Indebtedness that is secured by a Lien (in each case, other than Indebtedness owed to the Company, any Restricted Subsidiary or American Capital Asset Management, LLC) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (i), the Issuer or Company, such Restricted Subsidiary or American Capital Asset Management, LLC, as the case may be, will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; or (iiB) unless included in Section 4.08(c)(1)(B)(i), to prepay, repayrepay or purchase Pari Passu Indebtedness; provided, purchase however, that, to the extent the Company redeems, repays or redeem any repurchases Pari Passu Indebtedness of pursuant to this clause (B), the Issuer Company 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 any Guarantor, at a price of no more than above 100% of the principal amount of such Pari Passu Indebtedness plus accrued and unpaid interest thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to the date of such prepayment, repayment, all Holders to purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases their Notes at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to plus the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and but unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtednesswould otherwise be prepaid; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;or
(2ii) to the extent the Issuer or Company, such Restricted Subsidiary or American Capital Asset Management, LLC, as the case may be, elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including Securitization Assets and by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 days from the later of (iA) the date of such Asset Disposition and (iiB) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer Company that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses clause (1), (2), (3i) or clause (4ii) of in Section 4.08(c3.5(a)(3), the Issuer Company and the its Restricted Subsidiaries or American Capital Asset Management, LLC, as the case may be, may temporarily reduce Indebtedness or otherwise invest use such Net Available Cash in any manner not prohibited by this Indenture.
(db) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) the preceding paragraph will be deemed to constitute “Excess Proceeds.” On under this Indenture. No later than the 366th day (or after the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors expiration of the Issuer pursuant to clause (2) or (3) of period set forth in Section 4.08(c3.5(a)(3)(ii)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds under this Indenture exceeds $100 30.0 million, the Issuer Company will within 10 Business Days be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders Holders of the Notes issued under this Indenture and, to the extent the Issuer or a Guarantor Company elects, or the Issuer or a Guarantor is required by the terms to all holders of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, interest 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 the case of the Notes, in minimum denominations of $200,000 2,000 and in integral multiples of $1,000 in excess thereof. No The Company will deliver notice of such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer electronically or by first-class mail, with respect to such Net Available Cash prior a copy to the time period 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 may 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 with respect to all or a part of the available Net Available Cash (the “Advance Portion”) and described in advance of being required to do so by this Indenture (an “Advance Offer”)such notice.
(e) [Reserved].
(fc) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Issuer and the Restricted Subsidiaries Company may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, subject to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness. For the purposes , as applicable, and in minimum denominations of calculating the principal amount $2,000 and in integral multiples of any such Indebtedness not denominated $1,000 in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)excess thereof. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(gd) 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 in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in U.S. dollars that is actually received by the IssuerCompany upon converting such portion into U.S. dollars.
(he) 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, American Capital Asset Management, LLC, or any Restricted Subsidiary, as the case may be, (other than Subordinated Indebtedness of the Company or a Guarantor) and the release of the Company, such Restricted Subsidiary or American Capital Asset Management, LLC, as the case may be, from all liability on such Indebtedness or other liability in connection with such Asset Disposition;
(ii) securities, notes or other obligations received by the Company, American Capital Asset Management, LLC, or any Restricted Subsidiary, as the case may be, from the transferee that are converted by the Company, such Restricted Subsidiary or American Capital Asset Management, LLC, as the case may be, into cash or Cash Equivalents within 180 days following the closing of such Asset Disposition;
(iii) 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 or each other Restricted Subsidiary, as the case may be, is released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition;
(iv) consideration consisting of Indebtedness of the Company (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company, American Capital Asset Management, LLC, or any Restricted Subsidiary, as the case may be; and
(v) any Designated Non-Cash Consideration received by the Company or any Restricted Subsidiary, as the case may be, 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 1.5% of Total Assets (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) The Asset Disposition OfferCompany will comply, in so far as it relates to the Notesextent applicable, will remain open for a period with the requirements of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) 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 in connection conflict with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination provisions of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”)this Indenture, the Issuer Company will purchase comply with the principal amount of Notes and, applicable securities laws and regulations and shall not be deemed to the extent it elects, Pari Passu Indebtedness required to be purchased have breached its obligations described in this Indenture by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess virtue thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 1 contract
Sources: Indenture (American Capital, LTD)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company and any Permitted Affiliate Parent will not, and will not permit any of its the Restricted Subsidiaries to, to make any Asset Disposition unless:
(1) the Issuer Company, such Permitted Affiliate Parent 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), ) (including as determined in good faith by an Officer or to the Board value of Directors of the Issuer, all non-cash consideration) of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); andDisposition;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent unless the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company, such Permitted Affiliate Parent or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) is reinvested or applied to prepay the receipt of such Net Available Cash (i) to prepay, repay, purchase Loans or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Other Applicable Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount in accordance with Section 2.05(b)(i) of Notes at least equal this Agreement.
(b) For the purposes of this Section 4.10, the following will be deemed to the proportion that be cash:
(x1) the total aggregate principal amount assumption by the transferee of Notes outstanding bears to Indebtedness (yother than Subordinated Obligations) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase any Loan Party or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor Loan Party and the release of such Loan Party or any such Restricted Subsidiary from all liability on such Indebtedness that is secured on assets in connection with such Asset Disposition (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on which case the relevant record date Borrower will, without further action, be deemed to receive interest due on the relevant interest payment datehave applied such deemed cash to Indebtedness in accordance with Section 2.05(b)(i) or (v) to redeem the Notes as described under Section 3.07of this Agreement);
(2) to securities, notes or other obligations received by the extent Company, a Permitted Affiliate Parent or any Restricted Subsidiary from the Issuer transferee that are convertible by the Company, such Permitted Affiliate Parent or such Restricted Subsidiary elects, to invest in into cash or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by Equivalents within 180 days following the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date closing of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th dayDisposition;
(3) to make Indebtedness of any Restricted Subsidiary that is no longer a capital expenditure within 365 days from the later of (A) the date Restricted Subsidiary as a result of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes andDisposition, to the extent that the Issuer or a Guarantor electsCompany, or the Issuer or a Guarantor is required by the terms any Permitted Affiliate Parent and each other Restricted Subsidiary are released from any guarantee of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% payment of the principal amount of such Notes and 100Indebtedness in connection with such Asset Disposition;
(4) consideration consisting of Indebtedness of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary;
(5) any Designated Non-Cash Consideration received by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value not to exceed 25.0% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, consideration from such Asset Disposition (excluding any consideration received from such Asset Disposition in accordance with Section 4.10(b)(1) to Section 4.10(b)(4)) (with the procedures set forth in this Indenture fair market value of each item of Designated Non-Cash Consideration being measured at the time received or, at the option of the Company or any Permitted Affiliate Parent, at the agreements governing the Pari Passu Indebtedness, as applicabletime of contractually agreeing to such Asset Disposition, and without giving effect to subsequent changes in the case of the Notes, value); 95007615_1
(6) in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect addition to any Net Available Designated Non-Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn Consideration received pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance PortionSection 4.10(b)(5), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Designated Non-Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually Consideration received by the Issuer.
(h) The Company, a Permitted Affiliate Parent or any Restricted Subsidiary in such Asset Disposition OfferDispositions having an aggregate fair market value, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply taken together with Section 14(e) of the Exchange Act and any all other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it Designated Non-Cash Consideration received pursuant to this Section 4.08 4.10(b)(6) that is at that time outstanding, not to exceed the greater of $75.0 million and 5.0% of Total Assets (with the “Asset Disposition Offer Amount”) fair market value of each item of Designated Non-Cash Consideration being measured at the time received or, if less than at the option of the Company or any Permitted Affiliate Parent, at the time of contractually agreeing to such Asset Disposition Offer Amount has been so validly tenderedDisposition, all Notes and Pari Passu Indebtedness validly tendered without giving effect to subsequent changes in response to the Asset Disposition Offer.value);
(i7) On consideration consisting of securities or before obligations issued, insured or unconditionally guaranteed by a government (or any agency or instrumentality thereof) of a country where the Asset Disposition Purchase DateCompany, a Permitted Affiliate Parent or any Restricted Subsidiary is organized or located; and
(8) any Capital Stock or assets of the Issuer will, kind referred to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case definition of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof“Additional Assets”.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 1 contract
Sources: Additional Facility Joinder Agreement (Liberty Latin America Ltd.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Each of the Parent and the Borrower will not, and will not permit any of its the Restricted Subsidiaries to, make any Asset Disposition unless:
(1i) the Issuer Parent, the Borrower or such Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) 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 an Officer or the Board of Directors (including as to the value of the Issuerall noncash consideration), of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); andDisposition;
(2ii) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Parent, the Borrower or such Restricted Subsidiary, as the case may be, from such Asset Disposition is in the form of cash, cash or Cash Equivalents or Temporary Cash InvestmentsEquivalents; and
(iii) the Loan Parties comply in all respects with the provisions of Section 3.04(c) relating to Asset Dispositions.
(cb) After For the receipt purposes of Net Available Cash from an Asset DispositionSection 9.11(a)(ii), the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):following will be deemed to be cash:
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase the assumption by the transferee of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness or Disqualified Capital Stock) of the Issuer Parent, the Borrower or a Guarantor or Indebtedness owed to Restricted Subsidiary and the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% release of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not includingParent, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer Borrower or such Restricted Subsidiary elects, to invest from all liability on such Debt in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary connection with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt or in lieu of such Net Available Casha release, the agreement of the acquirer or its parent company to indemnify and hold the Parent, the Borrower or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed Debt; provided, however, that such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such reinvestment in Additional Assets made pursuant indemnifying party (or its long term debt securities) failing to a definitive binding agreement have an Investment Grade Rating); and
(ii) securities, notes or a commitment approved other obligations received by the Board of Directors of Borrower or any Restricted Subsidiary from the Issuer transferee that is executed are converted by the Borrower or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated Restricted Subsidiary into cash within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the after receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenturethereof.
(dc) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed Notwithstanding the foregoing, the 75% limitation referred to be applied or invested as provided in Section 4.08(c9.11(a)(ii) will shall be deemed satisfied with respect to constitute “Excess Proceeds.” On any Asset Disposition in which the 366th day (cash or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors Equivalents portion of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cashconsideration received therefrom, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, determined in accordance with the procedures set forth in this Indenture foregoing provision on an after-tax basis, is equal to or greater than what the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No after-tax proceeds would have been had such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection complied with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offeraforementioned 75% limitation.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will not, and will not permit any of its Restricted Subsidiaries to, make consummate any Asset As-set Disposition unless:
: (1) the Issuer or such Restricted Subsidiary, as the case may be, receives consideration (including in-cluding by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), Disposition as determined in good faith by an Officer or the Board of Directors of the Issuer, ) of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition Disposi-tion is a Permitted Asset Swap); and
(2) in any such Asset Disposition, Disposition or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap)) if the property or assets sold or otherwise disposed of have a fair market value in excess of $40.0 million, at least 75% of the consideration from such Asset Disposition or such series of related Dis-position, together with all other Asset Dispositions since the Escrow Release Date (excluding any consideration on a cumulative basis), (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent contin-gent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cashcash or Cash Equivalents; and (3) the Issuer or any of its Restricted Subsidiaries, Cash Equivalents or Temporary Cash Investments.
(c) After the receipt of at its respective option, will apply an amount equal to such Net Available Cash from an any Asset Disposition: (i) (A) to prepay, repay, redeem 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 Issuer or a any Restricted Subsidiary, as ) or Indebtedness under the case may be, may apply such Net Available Cash directly Credit Agreement (or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1any Refinancing In-debtedness in respect thereof) within 365 540 days from the later of (A1) the date of such Asset Disposition Disposi-tion and (B2) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repayment repayment, redemption or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment com-mitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased re-deemed or redeemedpurchased; or (iiB) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, redeem or purchase or redeem any Pari Passu Indebtedness of Indebtedness; pro-vided, further, that, to the extent the Issuer or any GuarantorRestricted Subsidiary prepays, repays, redeems or purchases Pari Passu Indebtedness pursuant to this clause (B), the Issuer shall equally and rata-▇▇▇ reduce Obligations under the Notes as provided under Section 5.7, through open-market pur-chases (to the extent such purchases are at a price of no more than or above 100% of the principal amount of such Pari Passu Indebtedness plus accrued and unpaid interest thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to the date of such prepayment, repayment, all Holders to purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases their Notes at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to plus the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notesaccrued but unpaid interest, plus accrued and unpaid interest if any, on the amount of Notes that would otherwise be purchased to, but not includingexcluding, the date of purchase purchase; and/or (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment dateii) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 540 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or shall be treated as a permitted application of Net Available Cash from the date of such commitment approved by with the Board of Directors of the Issuer good faith expectation that is executed or approved within such time Net Available Cash will be applied to satisfy this requirement, so long as such investment is consummated commitment within 180 days of such 365th day; orcommitment (an “Acceptable Commitment”) and, in the event that any Acceptable Commitment is later can--78-
(4b) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending If an amount equal to the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided provided, and within the time period (including as extended) set forth in Sec-tion 3.5(a) (it being understood that any portion of such amount used to make an offer to purchase Notes, as de-scribed in Section 4.08(c) 3.5(a)(3)(i)(B), will be deemed to have been applied whether or not such offer is accepted), then such amount not applied or invested or committed to be applied or invested will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if under this Indenture. When the aggregate amount of Excess Proceeds under this Indenture exceeds $100 million60.0 million in any fiscal year, the Issuer will be required within ten (10) 10 Business Days thereof to make an offer (an “Asset Disposition Offer”) to all holders Holders of the Notes and, to the extent the Issuer elects or a Guarantor elects, or the Issuer or a Guarantor is required to by the terms of any Pari Passu Indebted-ness, to holders or lenders of any other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase (or redeem or repay, as applicable) the maximum aggregate principal amount of such the Notes and any such Pari Passu Indebtedness to which the such Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, Proceeds at an offer price in respect of the Notes cash in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and such Pari Passu Indebtedness, or 100% of the principal amount ac-creted value thereof, if less (or, in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be pro-vided for by the terms of such Pari Passu Indebtedness), in each case, plus accrued and unpaid interestinterest and Addi-tional Amounts, if any, to, but not includingexcluding, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the such Pari Passu Indebtedness, as applicable, applicable and in the case of the Notes, in minimum denominations of $200,000 €100,000 and in integral multiples of $€1,000 in excess thereof. No The Issuer will deliver notice of such purchase Asset Dis-position Offer electronically or by first-class mail as provided under Section 3.5(g) with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in part shall reduce the principal amount at maturity security register (or while Notes are in the form of Global Notes, in accordance with the Applicable Procedures), describing the transaction or transactions that con-stitute the Asset Disposition and offering to repurchase the Notes held for the specified purchase price on the date speci-fied 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 any holder to below $200,000this Indenture, or otherwise in accordance with the procedures of Euroclear and Clearstream, and described in such notice. The Issuer may satisfy the foregoing obligations with respect re-spect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such all Net Available Cash prior to the time expiration of the relevant 540 days (or such longer period that may be required by this Indenture provided above) or with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”)any unapplied Excess Proceeds.
(e) [Reserved].
(fc) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Issuer and the or any Restricted Subsidiaries Subsidiary may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent any purpose not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Excess Ex-cess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness; provided that no Notes or other Pari Passu Indebtedness in an unauthorized denomination will remain outstanding after such purchase. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon Up-on completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case zero (regardless of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in whether there are any remaining Excess Proceeds upon such Advance Offer shall be excluded in subsequent calculations of Excess Proceedscompletion).
(gd) To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated denominat-ed in a currency other than dollarsDollars, the amount thereof payable in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in Dollars that is actually received by the Issuer upon converting such portion into Dollars.
(e) Notwithstanding any other provisions of this Section 3.5, (i) to the extent that any or all of the Net Available Cash of any Asset Disposition by a Foreign Subsidiary (a “Foreign Disposition”) is (x) prohibited or de--79-
(f) For purposes of Section 3.5(a)(2), the following will be deemed to be cash: (i) the (x) assumption or (y) cancellation, extinguishment or termination of Indebtedness or other liabilities (as reflected on the Issuer’s or such Restricted Subsidiary’s most recent consolidated bal-ance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Issuer’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as deter-mined in good faith by the Issuer) contingent or otherwise, in each case of the Issuer or a Restricted Subsid-iary (other than Subordinated Indebtedness of the Issuer or a Guarantor) and, in the case of clause (x) only, the release of the Issuer or such Restricted Subsidiary from all liability on such Indebtedness or other liabil-ity in connection with such Asset Disposition; (ii) securities, notes or other obligations received by the Issuer or any Restricted Subsidiary from the transferee that are converted by the Issuer or such Restricted Subsidiary into cash or Cash Equiva-▇▇▇▇▇ within 180 days following the closing of such Asset Disposition; (iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Issuer and each other Restricted Subsidiary are re-leased from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition; (iv) consideration consisting of Indebtedness of the Issuer or a Guarantor (other than Subor-dinated Indebtedness) received after the Escrow Release Date from Persons who are not the Issuer or any Restricted Subsidiary; and (v) any Designated Non-Cash Consideration received by the Issuer or any Restricted Subsid-iary in such Asset Dispositions having an aggregate fair market value, taken together with all other Desig-nated Non-Cash Consideration received pursuant to this Section 3.5 that is at that time outstanding, not to exceed the greater of $60.0 million and 15.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) (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 val-ue).
(g) Upon the commencement of an Asset Disposition Offer, the Issuer shall send, or cause to be sent, electronically or by first class mail, a notice to the Trustee and to each Holder at its registered address (or while Notes are in the form of Global Notes, in accordance with the Applicable Procedures). The notice shall contain all -80-
(h) The If the Asset Disposition OfferSale Payment Date is on or after a record date and on or before the related interest payment date, in so far as it relates any accrued and unpaid interest shall be paid to the NotesPerson in whose name a Note is registered at the close of business on such record date, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required and no additional interest shall be payable to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Holders who tender Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response pur-suant to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Sale Payment Date, the Issuer will, to the extent lawful, permitted by law: (1) accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of payment all Notes and Pari Passu Indebtedness issued by it or portions of Notes and Pari Passu Indebtedness so validly thereof properly tendered and not properly withdrawn pursuant to the Asset Disposition Offer; (2) deposit with the Paying Agent an amount equal to the aggregate Asset Disposition pay-ment in respect of all Notes or portions thereof so tendered; and (3) deliver, or if less than cause to be delivered, to the Asset Disposition Offer Amount has Registrar for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been validly tendered to and not properly withdrawn, all Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in purchased by the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.Issuer. -81-
(j) The Issuer will deliver comply, to the Trustee an Officer’s Certificate stating 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 such Notes the provisions of any securities laws or portions thereof were accepted for payment by regulations conflict with the provisions of this Indenture, the Issuer in accordance will comply with the terms of applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4Inden-ture by virtue thereof.
Appears in 1 contract
Sources: Indenture (Diversey Holdings, Ltd.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the IssuerCompany, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 7575.0% of the consideration from such Asset Disposition or such series of related Disposition, together with all other Asset Dispositions since the Issue Date (excluding any consideration on a cumulative basis) (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After an amount equal to 100.0% of the receipt of Net Available Cash from an such Asset Disposition, Disposition is applied:
(i) to the Issuer extent the Company or a any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects (or indirectly is required by the terms of any Indebtedness), (at A) to prepay, repay or purchase any Indebtedness of a Non-Guarantor (in each case, other than Indebtedness owed to the option of the Issuer Company or such any Restricted Subsidiary):
) or any Secured Indebtedness; including Indebtedness under the Credit Agreement, the Existing Notes or ABL (1or any Refinancing Indebtedness in respect thereof) within 365 450 days from the later of (Aa) the date of such Asset Disposition and (Bb) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (i), the Issuer Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; or (iiB) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, repay or purchase or redeem any Indebtedness with Pari Passu Lien Priority relative to the Notes; provided further that, to the extent the Company redeems, repays or repurchases such Indebtedness of pursuant to this clause (B), the Issuer Company 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 any Guarantor, at a price of no more than 100above 100.0% of the principal amount of such Pari Passu Indebtedness plus accrued and unpaid interest thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to the date of such prepayment, repayment, all Holders to purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases their Notes at a price equal to or higher than 100100.0% of the principal amount thereof, or makes an offer to plus the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notesaccrued but unpaid interest, plus accrued and unpaid interest toif any, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal that would otherwise be prepaid; provided further that, notwithstanding the foregoing, the Net Available Cash from an Asset Disposition of Collateral may not be applied pursuant to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iiiSection 3.5(a)(3)(i)(A) to prepay, repay, repay or purchase any unsecured Indebtedness or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness with Junior Lien Priority in respect of the Issuer or a Guarantor or Indebtedness owed Collateral relative to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2ii) to the extent the Issuer Company or such any Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with equal to the amount of Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 450 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or shall be treated as a permitted application of Net Available Cash from the date of such commitment approved by with the Board of Directors of the Issuer good faith expectation that is executed or approved within an amount equal to Net Available Cash will be applied to satisfy such time will satisfy this requirement, so long as such investment is consummated commitment within 180 days of such 365th daycommitment (an “Acceptable Commitment”) and, in the event of any Acceptable Commitment is later cancelled or terminated for any reason before such amount is applied in connection therewith, the Company or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; orprovided further that if any Second Commitment is later cancelled or terminated for any reason before such amount is applied, then such Net Available Cash shall constitute Excess Proceeds; and
(4iii) any combination if such Asset Disposition involves the disposition of clauses (1) through (3) Collateral, the Company or such Subsidiary has complied with the provisions of Section 4.08(c), this Indenture and the Collateral Documents. provided that, pending the final application of the amount of any such Net Available Cash in accordance with clauses clause (1), (2), (3i) or clause (4ii) of Section 4.08(c)above, the Issuer Company and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest use such Net Available Cash in any manner not prohibited by this Indenture.
(db) Any The amount of any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) the preceding paragraph will be deemed to constitute “Excess Proceeds.” under this Indenture. On the 366th 451st day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such an Asset Disposition and (B) or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds under this Indenture exceeds $100 100.0 million, the Issuer Company will within 10 Business Days be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders Holders of the Notes issued under this Indenture and, to the extent the Issuer or a Guarantor Company elects, or the Issuer or a Guarantor is required by the terms to all holders of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Indebtedness with Pari Passu Indebtedness Lien Priority in respect of the Collateral relative to the Notes (including the Existing Notes and the Credit Agreement), to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100100.0% of the principal amount of such the Notes and 100% of the principal amount of such Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not includingexcluding, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the such Pari Passu Indebtedness, as applicable, and in the case of and, with respect to the Notes, in minimum denominations of $200,000 2,000 and in integral multiples of $1,000 in excess thereof. No The Company will deliver notice of such purchase Asset Disposition Offer electronically or by first-class mail, with a copy to the Trustee, the Paying Agent and each Holder of Notes at the address of such Holder appearing in part shall reduce the principal amount at maturity security register or otherwise in accordance with the applicable procedures of DTC, describing the transaction or transactions that constitute the Asset Disposition and offering to repurchase the Notes held for the specified purchase price on the date specified in the notice, which date will be no earlier than 15 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by any holder to below $200,000this Indenture and described in such notice. The Issuer Company may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such all Net Available Cash prior to the time expiration of the relevant 450 days (or such longer period that may be required by this Indenture provided above) or with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”)any unapplied Excess Proceeds.
(e) [Reserved].
(fc) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness with Pari Passu Lien Priority in respect of the collateral relative to the Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Issuer and the Restricted Subsidiaries Company may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent any purpose not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness with Pari Passu Lien Priority in respect of the collateral relative to the Notes surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), Company shall allocate the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and such Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and such Pari Passu Indebtedness. For the purposes of calculating the principal amount of any ; provided that no Notes or other such Pari Passu Indebtedness not denominated will be selected and purchased in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)an unauthorized denomination. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Additionally, and in the case Company may, at its option, make an Asset Disposition Offer using proceeds from any Asset Disposition at any time after the consummation of an Advance such Asset Disposition. Upon consummation or expiration of any Asset Disposition Offer, the amount of any remaining Net Available Cash shall not be deemed Excess Proceeds and the Issuer is offering to apply in Company may use such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) Net Available Cash for any purpose not prohibited by this Indenture. 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 in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in U.S. dollars that is actually received by the IssuerCompany upon converting such portion into U.S. dollars.
(hd) The 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 Offerby a Foreign Subsidiary (a “Foreign Disposition”) is (x) prohibited or delayed by applicable local law, in so far as it relates (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous organizational or administrative impediments from being repatriated to the NotesUnited States, the portion of such Net Available Cash so affected will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time be required to comply be applied in compliance with Section 14(e) of this covenant, and such amounts may be retained by the Exchange Act and any other applicable securities laws Foreign Subsidiary so long, but only so long, as the applicable local law documents or regulations in connection with agreements will not permit repatriation to the Asset Disposition Offer United States (the “Asset Disposition Offer Period”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). No , 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 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 such repatriation actually occurs) in compliance with this Section 3.5; and
(ii) to the termination 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 whereby doing so the Company, any Restricted Subsidiary, or any of their respective affiliates and/or equity owners would incur a tax liability, including a 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 Asset Disposition Offer Period foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default.
(e) For the “Asset Disposition Purchase Date”)purposes of Section 3.5(a)(2) hereof, the Issuer following will purchase be deemed to be cash:
(1) the principal amount assumption by the transferee of Notes andIndebtedness or other liabilities contingent or otherwise of the Company or a Restricted Subsidiary (other than Subordinated Indebtedness of the Company or 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;
(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 it electsthat 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) 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, Pari Passu Indebtedness required to be purchased by it taken together with all other Designated Non-Cash Consideration received pursuant to this Section 4.08 covenant that is at that time outstanding, not to exceed the greater of $130.0 million and 4.0% of Total Assets (with the “Asset Disposition Offer Amount”) or, if less than fair market value of each item of Designated Non-Cash Consideration being measured at the Asset Disposition Offer Amount has been so validly tendered, all Notes time received and Pari Passu Indebtedness validly tendered without giving effect to subsequent changes in response to the Asset Disposition Offervalue).
(if) On To the extent that the provisions of any securities laws, rules or before regulations, including Rule 14e-1 under the Asset Disposition Purchase DateExchange Act, conflict with the provisions of this Indenture, the Issuer willCompany will comply with the applicable securities laws, rules and regulations and shall not be deemed to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, have breached its obligations described in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess this Indenture by virtue thereof.
(jg) The Issuer will deliver provisions of this Indenture relative to the Trustee Company’s obligation to make an Officer’s Certificate stating that such 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 principal amount of the then outstanding Notes.
(h) The Credit Agreement, the Existing Notes and the ABL may prohibit or limit, and future credit agreements or other agreements to which the Company becomes a party may prohibit or limit, the Company from purchasing any Notes pursuant to this covenant. In the event the Company is prohibited from purchasing the Notes, the Company could seek the consent of its lenders to the purchase of the Notes or portions thereof were accepted for payment by could attempt to refinance the Issuer in accordance with borrowings that contain such prohibition. If the terms Company does not obtain such consent or repay such borrowings, it will remain prohibited from purchasing the Notes. In such case, the Company’s failure to purchase tendered Notes would constitute an Event of Default under this Section 4Indenture.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the IssuerCompany, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 7575.0% of the consideration from such Asset Disposition or such series of related Disposition, together with all other Asset Dispositions since the Issue Date (excluding any consideration on a cumulative basis) (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After an amount equal to 100.0% of the receipt of Net Available Cash from an such Asset Disposition, Disposition is applied:
(i) to the Issuer extent the Company or a any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects (or indirectly is required by the terms of any Indebtedness), (at A) to prepay, repay or purchase any Indebtedness of a Non-Guarantor (in each case, other than Indebtedness owed to the option of the Issuer Company or such any Restricted Subsidiary):
) or any Secured Indebtedness; including Indebtedness under the Credit Agreement or ABL (1or any Refinancing Indebtedness in respect thereof) within 365 450 days from the later of (Aa) the date of such Asset Disposition and (Bb) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (i), the Issuer Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; or (iiB) unless included in Section 4.08(c)(1)(B)(i), to prepay, repayrepay or purchase Pari Passu Indebtedness; provided further that, purchase to the extent the Company redeems, repays or redeem any repurchases Pari Passu Indebtedness of pursuant to this clause (B), the Issuer Company 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 any Guarantor, at a price of no more than 100above 100.0% of the principal amount of such Pari Passu Indebtedness plus accrued and unpaid interest thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to the date of such prepayment, repayment, all Holders to purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases their Notes at a price equal to or higher than 100100.0% of the principal amount thereof, or makes an offer to plus the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notesaccrued but unpaid interest, plus accrued and unpaid interest toif any, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtednesswould otherwise be prepaid; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;and
(2ii) to the extent the Issuer Company or such any Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with equal to the amount of Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 450 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or shall be treated as a permitted application of Net Available Cash from the date of such commitment approved by with the Board of Directors of the Issuer good faith expectation that is executed or approved within an amount equal to Net Available Cash will be applied to satisfy such time will satisfy this requirement, so long as such investment is consummated commitment within 180 days of such 365th daycommitment (an “Acceptable Commitment”) and, in the event of any Acceptable Commitment is later cancelled or terminated for any reason before such amount is applied in connection therewith, the Company or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; or
(4) provided further that if any combination of clauses (1) through (3) of Section 4.08(c)Second Commitment is later cancelled or terminated for any reason before such amount is applied, then such Net Available Cash shall constitute Excess Proceeds; provided that, pending the final application of the amount of any such Net Available Cash in accordance with clauses clause (1), (2), (3i) or clause (4ii) of Section 4.08(c)above, the Issuer Company and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest use such Net Available Cash in any manner not prohibited by this Indenture.
(db) Any The amount of any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) the preceding paragraph will be deemed to constitute “Excess Proceeds.” under this Indenture. On the 366th 451st day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such an Asset Disposition and (B) or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds under this Indenture exceeds $100 100.0 million, the Issuer Company will within 10 Business Days be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders Holders of the Notes issued under this Indenture and, to the extent the Issuer or a Guarantor Company elects, or the Issuer or a Guarantor is required by the terms to all holders of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100100.0% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of and, with respect to the Notes, in minimum denominations of $200,000 2,000 and in integral multiples of $1,000 in excess thereof. No The Company will deliver notice of such purchase Asset Disposition Offer electronically or by first-class mail, with a copy to the Trustee, the Paying Agent and each Holder of Notes at the address of such Holder appearing in part shall reduce the principal amount at maturity security register or otherwise in accordance with the applicable procedures of DTC, describing the transaction or transactions that constitute the Asset Disposition and offering to repurchase the Notes held 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 any holder to below $200,000this Indenture and described in such notice. The Issuer Company may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such all Net Available Cash prior to the time expiration of the relevant 450 days (or such longer period that may be required by this Indenture provided above) or with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”)any unapplied Excess Proceeds.
(e) [Reserved].
(fc) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Issuer and the Restricted Subsidiaries Company may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent any purpose not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), Company shall allocate the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such ; provided that no Notes or other Pari Passu Indebtedness not denominated will be selected and purchased in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)an unauthorized denomination. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Additionally, and in the case Company may, at its option, make an Asset Disposition Offer using proceeds from any Asset Disposition at any time after the consummation of an Advance such Asset Disposition. Upon consummation or expiration of any Asset Disposition Offer, the amount of any remaining Net Available Cash shall not be deemed Excess Proceeds and the Issuer is offering to apply in Company may use such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) Net Available Cash for any purpose not prohibited by this Indenture. 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 in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in U.S. dollars that is actually received by the IssuerCompany upon converting such portion into U.S. dollars.
(hd) The 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 Offerby a Foreign Subsidiary (a “Foreign Disposition”) is (x) prohibited or delayed by applicable local law, in so far as it relates (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous organizational or administrative impediments from being repatriated to the NotesUnited States, the portion of such Net Available Cash so affected will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time be required to comply be applied in compliance with Section 14(e) of this covenant, and such amounts may be retained by the Exchange Act and any other applicable securities laws Foreign Subsidiary so long, but only so long, as the applicable local law documents or regulations in connection with agreements will not permit repatriation to the Asset Disposition Offer United States (the “Asset Disposition Offer Period”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). No , 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 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 such repatriation actually occurs) in compliance with this Section 3.5; and
(ii) to the termination 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 whereby doing so the Company, any Restricted Subsidiary, or any of their respective affiliates and/or equity owners would incur a tax liability, including a 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 Asset Disposition Offer Period foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default.
(e) For the “Asset Disposition Purchase Date”)purposes of Section 3.5(a)(2) hereof, the Issuer following will purchase be deemed to be cash:
(1) the principal amount assumption by the transferee of Notes andIndebtedness or other liabilities contingent or otherwise of the Company or a Restricted Subsidiary (other than Subordinated Indebtedness of the Company or 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;
(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 it electsthat 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) 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, Pari Passu Indebtedness required to be purchased by it taken together with all other Designated Non-Cash Consideration received pursuant to this Section 4.08 covenant that is at that time outstanding, not to exceed the greater of $125.0 million and 4.0% of Total Assets (with the “Asset Disposition Offer Amount”) or, if less than fair market value of each item of Designated Non-Cash Consideration being measured at the Asset Disposition Offer Amount has been so validly tendered, all Notes time received and Pari Passu Indebtedness validly tendered without giving effect to subsequent changes in response to the Asset Disposition Offervalue).
(if) On To the extent that the provisions of any securities laws, rules or before regulations, including Rule 14e-1 under the Asset Disposition Purchase DateExchange Act, conflict with the provisions of this Indenture, the Issuer willCompany will comply with the applicable securities laws, rules and regulations and shall not be deemed to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, have breached its obligations described in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess this Indenture by virtue thereof.
(jg) The Issuer will deliver provisions of this Indenture relative to the Trustee Company’s obligation to make an Officer’s Certificate stating that such offer to repurchase the Notes as a result of an Asset Disposition may be waived or portions thereof were accepted for payment by the Issuer in accordance modified with the terms written consent of this Section 4the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its the Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the IssuerCompany, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Disposition, together with all other Asset Dispositions since the Issue Date (excluding any consideration on a cumulative basis) (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After an amount equal to 100% of the receipt of Net Available Cash from an such Asset Disposition, Disposition is applied:
(i) to the Issuer extent the Company or a any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects (or indirectly is required by the terms of any Indebtedness), (at A) to prepay, repay or purchase any Indebtedness of a Non-Guarantor (in each case, other than Indebtedness owed to the option of the Issuer Company or such any Restricted Subsidiary):
) or any Secured Indebtedness secured by a First Priority Lien, including Indebtedness under the Credit Agreement (1or any Refinancing Indebtedness in respect thereof) within 365 450 days from the later of (A1) the date of such Asset Disposition and (B2) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, notwithstanding the foregoing, the Net Available Cash from an Asset Disposition of Collateral may not be applied pursuant to clause (i) of this paragraph to prepay, repay or purchase any unsecured Indebtedness or Secured Indebtedness other than in accordance with the Intercreditor Agreement; provided further, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (i), the Issuer Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; (iiB) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; or (iiiC) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07Asset Disposition Offer;
(2ii) to the extent the Issuer Company or such any Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with equal to the amount of Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 450 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or shall be treated as a permitted application of Net Available Cash from the date of such commitment approved by with the Board of Directors of the Issuer good faith expectation that is executed or approved within an amount equal to Net Available Cash will be applied to satisfy such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
commitment (3an “Acceptable Commitment”) to make and, in the event of any Acceptable Commitment is later cancelled or terminated for any reason before such amount is applied in connection therewith, the Company or such Restricted Subsidiary enters into another Acceptable Commitment (a capital expenditure within 365 days from the later of (A“Second Commitment”) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th daycancellation or termination; orprovided further that if any Second Commitment is later cancelled or terminated for any reason before such amount is applied, then such Net Available Cash shall constitute Excess Proceeds; and
(4iii) to the extent of the balance of such Net Available Cash after application in accordance with clauses (a) and (b) above (the aggregate of any such amounts, “Declined Excess Proceeds”), to fund (to the extent consistent with any other applicable provision of this Indenture) any combination general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of clauses any Subordinated Obligations and the making of other Restricted Payments); provided that, (1) through (3) of Section 4.08(c), provided that, pending the final application of the amount of any such Net Available Cash in accordance with clauses clause (1i), (2), (3ii) or (4iii) of in Section 4.08(c3.5(a)(3), the Issuer Company and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest use such Net Available Cash in any manner not prohibited by this Indenture; (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 written notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (b) above with respect to such Asset Disposition; and (3) the foregoing percentage in this cause (3) shall be reduced to 50% if the Consolidated Total Leverage Ratio would be equal to or less than 2.75 to 1.00 after giving pro forma effect to any application of such Net Available Cash as set forth herein (any Net Available Cash in respect of Asset Dispositions not required to be applied in accordance with this clause (3) as a result of the application of this proviso shall collectively constitute “Total Leverage Excess Proceeds.”
(db) Any The amount of any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) the preceding paragraph will be deemed to constitute “Excess Proceeds.” (excluding all Total Leverage Excess Proceeds) under this Indenture. On the 366th 451st day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (Ax) the date of such an Asset Disposition and or (By) the receipt of such Net Available Cash, or earlier if the Company elects, if the aggregate amount of Excess Proceeds under this Indenture exceeds (i) $100 million30.0 million in the case of a single transaction or series of related transactions or (ii) $45.0 million aggregate amount in any fiscal year, the Issuer Company will within 10 Business Days be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders Holders of the Notes issued under this Indenture and, to the extent the Issuer or a Guarantor Company elects, or the Issuer or a Guarantor is required by the terms to all holders of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, interest 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 the case of and, with respect to the Notes, in minimum denominations of $200,000 2,000 and in integral multiples of $1,000 in excess thereof. No The Company will deliver notice of such purchase Asset Disposition Offer electronically or by first class mail, with a copy to the Trustee, the Paying Agent and each Holder of Notes at the address of such Holder appearing in part shall reduce the principal amount at maturity of the Notes held Register or otherwise in accordance with the applicable 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 15 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by any holder to below $200,000this Indenture and described in such notice. The Issuer Company may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such all Net Available Cash prior to the time expiration of the relevant 450 days (or such longer period that may be required by this Indenture provided above) or with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”)any unapplied Excess Proceeds.
(e) [Reserved].
(fc) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Issuer and the Restricted Subsidiaries Company may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent any purpose not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), Company shall allocate the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated provided that no Notes or other Pari Passu Indebtedness will be selected and purchased in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)an unauthorized denomination. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Additionally, and in the case Company may, at its option, make an Asset Disposition Offer using proceeds from any Asset Disposition at any time after the consummation of an Advance such Asset Disposition. Upon consummation or expiration of any Asset Disposition Offer, the amount of any remaining Net Available Cash shall not be deemed Excess Proceeds and the Issuer is offering to apply in Company may use such Advance Offer shall be excluded in subsequent calculations of Excess ProceedsNet Available Cash for any purpose not prohibited by this Indenture.
(gd) To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than dollarsDollars, the amount thereof payable in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in Dollars that is actually received by the IssuerCompany upon converting such portion into Dollars.
(he) The 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 reflected (or, if no such balance sheet is available, that would be reflected) on the most recent balance sheet or the footnotes thereto (other than Subordinated Indebtedness of the Company or 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;
(ii) 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 within 180 days following the closing of such Asset Disposition;
(iii) 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;
(iv) consideration consisting of Indebtedness of the Company (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company or any Restricted Subsidiary; and
(v) 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 $30.0 million and 15% 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) Upon the commencement of an Asset Disposition Offer, in so far as it relates the Company shall send, or cause to be sent, a notice to the NotesTrustee and to each Holder at its registered address, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply deliver otherwise in accordance with Section 14(e) the applicable procedures of the Exchange Act Depositary. The notice shall contain all instructions and any other applicable securities laws or regulations in connection with materials necessary to enable such Holder to tender Notes pursuant to the Asset Disposition Offer. Any Asset Disposition Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Disposition Offer, shall state:
(1) that the Asset Disposition Offer is being made pursuant to this Section 3.5 and that, to the extent lawful, all Notes tendered and not withdrawn shall be accepted for payment (unless prorated);
(2) the Asset Disposition payment amount, the Asset Disposition offered price, and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 15 days and not later than 60 days from the date such notices are sent (the “Asset Disposition Offer PeriodSale Payment Date”). No later than five ;
(53) Business Days after that any Notes not tendered or accepted for payment shall continue to accrue interest in accordance with the termination of terms thereof;
(4) that, unless the Company default in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer Period shall cease to accrue interest on and after the Asset Sale Payment Date;
(the “5) that Holders electing to have any Notes purchased pursuant to any Asset Disposition Purchase Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent at the address specified in the notice at least three Business Days before the Asset sale Payment Date”);
(6) that Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than two Business Days prior to the Issuer will purchase Asset Sale Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Note purchased;
(7) that if the aggregate principal amount of Notes andsurrendered by Holders exceeds the Asset Disposition payment amount, to the extent it elects, Pari Passu Indebtedness required Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by it pursuant the Company so that only Notes in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof shall be purchased); and
(8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to this Section 4.08 the unpurchased portion of the Notes surrendered (the “Asset Disposition Offer Amount”or transferred by book-entry).
(g) or, if less than If the Asset Disposition Offer Amount has been so validly tenderedSale Payment Date is on or after a record date and on or before the related interest payment date, all any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes and Pari Passu Indebtedness validly tendered in response pursuant to the Asset Disposition Offer.
(ih) On or before the Asset Disposition Purchase Sale Payment Date, the Issuer Company will, to the extent lawful, permitted by law,
(1) accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of payment all Notes and Pari Passu Indebtedness issued by it or portions of Notes and Pari Passu Indebtedness so validly thereof properly tendered and not properly withdrawn pursuant to the Asset Disposition Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Asset Disposition payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or if less than cause to be delivered, to the Asset Disposition Offer Amount has Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been validly tendered to and purchased by the Company.
(i) To the extent that the provisions of any securities laws or regulations, including Rule 14e-1 under the Exchange Act, conflict with the provisions of this Indenture, the Company will comply with the applicable securities laws, rules and regulations and shall not properly withdrawn, all Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess be deemed to have breached its obligations under this Indenture by virtue thereof.
(j) The Issuer will deliver provisions of this Indenture relative to the Trustee Company’s obligation to make an Officer’s Certificate stating that such offer to repurchase the Notes as a result of an Asset Disposition may be waived or portions thereof were accepted for payment by the Issuer in accordance modified with the terms written consent of this Section 4the Holders of a majority in principal amount of the Notes then outstanding.
Appears in 1 contract
Sources: Indenture (Atento S.A.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition unless:
(1i) the Issuer Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) such Asset 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 an Officer or the Board of Directors (including as to the value of the Issuerall non-cash consideration), of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), and at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis thereof received by the Issuer Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cashcash or Cash Equivalents, Cash Equivalents or Temporary Cash Investments.and
(cii) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as Company (x) within 180 days (in the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) below) or 360 days (in the date case of such Asset Disposition and (B) the below) after receipt of such Net Available Cash Cash, (iA) to the extent the Company so elects (or is so required by the terms of any Senior Debt), applies an amount equal to 100% of the Net Available Cash to repay, prepay, repay, redeem or purchase Senior Debt of the Company or redeem Debt (other than any Indebtedness incurred under Section 4.04(b)(1Disqualified Stock) of a Wholly Owned Subsidiary (in each case other than Debt owed to the Company or an Affiliate of the Company) or any Guarantor Indebtedness(B) invests or commits to invest the balance of such Net Available Cash not applied pursuant to clause (A), in Additional Assets; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except that in the case of any revolving Indebtednesscommitment to invest such investment must be made within one month thereafter, and any amount not so invested shall be treated as Excess Proceeds (as defined below); and (y) applies the balance of such Net Available Cash not applied pursuant to clause (x), as provided in the following paragraphs of this covenant. Notwithstanding the foregoing provisions of this paragraph, the Company and its Subsidiaries shall not be required to apply any Net Available Cash in accordance with this paragraph except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this paragraph exceeds $10 million. The amount of Net Available Cash required to be applied and not applied as so required shall constitute "Excess Proceeds". Pending application of Net Available Cash pursuant to this covenant, such Net Available Cash shall be invested in Temporary Cash Investments or applied to repay Debt Incurred under the Revolving Credit Facility without commitment reduction thereunder. For the purposes of this covenant, the following are deemed to be cash equivalents: (x) the assumption of Debt of the Company or any Subsidiary and the release of the Company or such Subsidiary from all liability on such Debt in connection with such Asset Disposition, (y) Temporary Cash Investments, and (z) securities received by the Company or any Subsidiary from the transferee that are promptly converted by the Company or such Subsidiary into cash.
(b) If, as of the first day of any calendar month, the aggregate amount of Excess Proceeds not theretofore subject to an Excess Proceeds Offer (as defined below) totals at least $10 million, the Company must, not later than the fifteenth Business Day of such month, make an offer (an "Excess Proceeds Offer") to be permanently reduced in purchase from the Holders (and to purchase Debt from the holders of any other Senior Subordinated Debt) on a pro rata basis an aggregate principal amount of Notes equal to the principal amount so prepaid, repaid, purchased or redeemed; Excess Proceeds (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, at a price of no more than 100% of the principal amount of such Pari Passu Indebtedness plus accrued and unpaid interest rounded down to the date nearest multiple of $1,000) on such prepaymentdate, repayment, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus plus, in each case, accrued and unpaid interest to, but not including, (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) foror, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding respect of such Pari Passu Indebtedness; (iii) to prepayother Senior Subordinated Debt, repaysuch lesser price, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereofif any, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received may be provided for by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date terms of such Asset Disposition and Senior Subordinated Debt) (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c"Excess Proceeds Payment"), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(dc) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes andThe Company shall comply, to the extent the Issuer or a Guarantor electsapplicable, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case requirements of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount repurchase of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer5.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 1 contract
Sources: Indenture (Goss Graphic Systems Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Following the Completion Date, the Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the IssuerCompany, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer Company or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer Company or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness); provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i4.08(c)(1), the Issuer Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i4.08(c)(1), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantora Guarantor that is secured in whole or in part by a Lien on the Notes Collateral, which Lien ranks pari passu with the Liens securing the Notes, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, Guarantor shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of accordance with the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, provisions set forth below for an Asset Disposition Offer for an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets which do not constitute Notes Collateral (in each case, other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer Company or any Restricted Subsidiary); or (iv) to purchase the Notes through open-market purchases at a price equal pursuant to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07);
(2) to the extent the Issuer Company or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer Company that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer Company that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.,
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) hereof will be deemed to constitute “Excess Proceeds.” ”. On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer Company pursuant to clause (2Section 4.08(c)(2) or (3Section 4.08(c)(3) of Section 4.08(c)hereof) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 25 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Issuer Company and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(gf) To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than dollarsthe currency in which the relevant Notes are denominated, the amount thereof payable in respect of the such Notes shall not exceed the net Dollar Equivalent amount of funds in the amount currency in which such Notes are denominated that is actually received by the IssuerIssuer upon converting such portion of the Net Available Cash into such currency.
(hg) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(ih) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(ji) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this covenant. The Issuer or the Paying Agent, as the case may be, will promptly (but in any case not later than five (5) Business Days after termination of the Asset Disposition Offer Period) mail or deliver to each tendering Holder of Notes an amount equal to the purchase price of the Notes so validly tendered and not properly withdrawn by such Holder, and accepted by the Issuer for purchase, and the Issuer will promptly issue a new Note (or, in the case of Global Notes, cause the Paying Agent to reduce the aggregate principal amount and amend the applicable Global Note pursuant to Section 2.06(g) hereof and in the case of Definitive Registered Notes, deliver or cause to be delivered to the relevant Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer), and the Trustee, upon receipt of an Officer’s Certificate from the Issuer, will, via an authenticating agent, authenticate and mail or deliver (or cause to be transferred by book-entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount with a minimum denomination of $200,000. Any Note not so accepted will be promptly mailed or delivered (or transferred by book-entry) by the Issuer to the Holder thereof.
(j) For the purposes of Section 4.08(b)(2), the following will be deemed to be cash:
(1) the assumption by the transferee (or other extinguishment in connection with the transactions relating to such Asset Dispositions) of Indebtedness and any other liabilities (as recorded on the balance sheet of the Company or any Restricted Subsidiary or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Company’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereof if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company) of the Company or any Restricted Subsidiary (other than Subordinated Indebtedness of the Issuer or a Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness 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 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 (as applicable) are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition;
(4) consideration consisting of Indebtedness of the Issuer or a Guarantor (other than 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 covenant that is at that time outstanding, not to exceed the greater of $110 million and 1.5% of Total Assets (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).
(k) The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Indenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.08, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of any conflict.
Appears in 1 contract
Sources: Indenture
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Borrower will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1i) the Issuer Borrower 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 (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition as such fair market value (including, on the date a legally binding commitment for the avoidance of doubt, if such Asset Disposition is a Permitted was entered into) may be determined (and shall be determined, to the extent such Asset SwapDisposition or any series of related Asset Dispositions involves aggregate consideration in excess of $25,000,000) in good faith by the Borrower, whose determination shall be conclusive (including as to the value of all noncash consideration); and;
(2ii) in the case of any such Asset Disposition, Disposition (or series of related Asset Dispositions Dispositions) having a fair market value (except to on the extent the date a legally binding commitment for such Asset Disposition is a Permitted Asset Swap)was entered into) of $25,000,000 or more, at least 7575.0% of the consideration from such therefor (excluding, in the case of an Asset Disposition (or such series of related Asset Dispositions (excluding Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than that are not Indebtedness), together with all other Asset Dispositions since ) received by the Issue Date Borrower or such Restricted Subsidiary is in the form of cash; and
(except iii) to the extent any required by Subsection 8.4(b), an amount equal to 100.0% of the Net Available Cash from such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received is applied by the Issuer Borrower (or such any Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments) as provided therein.
(cb) After In the receipt event that on or after the Closing Date the Borrower or any Restricted Subsidiary shall make an Asset Disposition or a Recovery Event in respect of Collateral shall occur, subject to Subsection 8.4(a), an amount equal to 100.0% of the Net Available Cash from an such Asset Disposition, Disposition or Recovery Event shall be applied by the Issuer Borrower (or a any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):) as follows:
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) first, to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer extent the Borrower or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment elects (if any) (except in the case by delivery of any revolving Indebtedness) to be permanently reduced in an amount equal officer’s certificate by a Responsible Officer to the principal amount so prepaid, repaid, purchased or redeemed; (iiAdministrative Agent) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Issuer Borrower or another Restricted Subsidiary) within 365 days from after the later of (i) the date of such Asset Disposition or Recovery Event, as the case may be, and (ii) the date of receipt of such Net Available CashCash (such period the “Reinvestment Period”) or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 365 days to complete and is subject to a binding written commitment entered into during the Reinvestment Period, an additional 180 days after the last day of the Reinvestment Period (it being understood and agreed that if no such investment is made within the Reinvestment Period as extended by this proviso, the Borrower shall make the prepayments required by Subsection 8.4(b)(ii) on the earlier to occur of (I) the last day of such Reinvestment Period as extended by this proviso and (II) the date the Borrower elects not to pursue such investment);
(ii) second, (1) if no application of Net Available Cash election is made pursuant to preceding clause (i) with respect to such Asset Disposition or Recovery Event or (2) if such election is made to the extent of the balance of such Net Available Cash or equivalent amount after application in accordance with Subsection 8.4(b)(i), (x) to the extent such Asset Disposition or Recovery Event is an Asset Disposition or Recovery Event of assets that constitute Collateral, to purchase, redeem, repay or prepay, in accordance with Subsection 4.4(e)(i) (subject to Subsection 4.4(h)) or the agreements or instruments governing the relevant Indebtedness described in clause (B) below, as applicable, (A) the Term Loans and (B) to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof any Pari Passu Indebtedness on a pro rata basis with the Term Loans and (y) to the extent such Asset Disposition is an Asset Disposition of assets that do not constitute Collateral, to purchase, redeem, repay or prepay, in accordance with Subsection 4.4(e)(i) (subject to Subsection 4.4(h)) or the agreements or instruments governing any relevant Indebtedness permitted under Subsection 8.1, as applicable, (A) the Term Loans and (B) to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof, any other Indebtedness (other than Indebtedness subordinated in right of payment to the First Lien Loan Document Obligations) on a pro rata basis with the Term Loans; and
(iii) third, to the extent of the balance of such Net Available Cash or equivalent amount after application in accordance with Subsections 8.4(b)(i) and (ii) above, to fund (to the extent consistent with any other applicable provision of this Agreement) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of Junior Debt); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (ii) above, the Borrower or such reinvestment Restricted Subsidiary 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; provided, further, that the Borrower (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets made pursuant prior to a definitive binding agreement or a commitment approved by receiving the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment Net Available Cash attributable to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such any given Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending such investment shall be made no earlier than the final application earliest of notice of the relevant Asset Disposition to the Administrative Agent, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with Subsection 8.4(b)(i) above with respect to such Asset Disposition.
(c) Notwithstanding the foregoing provisions of this Subsection 8.4, the Borrower and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Subsection 8.4 except to the extent that (x) the aggregate Net Available Cash from all Asset Dispositions and Recovery Events in respect of Collateral or equivalent amount that is not applied in accordance with this Subsection 8.4 exceeds $20,000,000, in which case the Borrower and its Subsidiaries shall apply all such Net Available Cash from such Asset Dispositions and Recovery Events or equivalent amount in accordance with clauses (1), (2), (3Subsection 8.4(b) or (4y) the terms of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce any Pari Passu Indebtedness or otherwise invest such would require Net Available Cash in any manner not prohibited by this Indentureor the equivalent amount from such Asset Dispositions and Recovery Events to be applied to purchase, redeem, repay or prepay such Indebtedness prior to reaching such $20,000,000 threshold.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed For the purposes of Subsection 8.4(a)(ii), the following are deemed to be applied or invested as provided in Section 4.08(ccash: (1) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th dayTemporary Cash Investments and Cash Equivalents, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) the assumption of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders Indebtedness of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of Borrower (other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out than Disqualified Stock of the Excess Proceeds, at an offer price in respect Borrower) or any Restricted Subsidiary and the release of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% Borrower or such Restricted Subsidiary from all liability on payment of the principal amount of such Notes Indebtedness in connection with such Asset Disposition, (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Borrower and 100% each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of Pari Passu Indebtednesssuch Indebtedness in connection with such Asset Disposition, in each case(4) securities received by the Borrower or any Restricted Subsidiary from the transferee that are converted by the Borrower or such Restricted Subsidiary into cash within 180 days, plus accrued and unpaid interest(5) consideration consisting of Indebtedness of the Borrower or any Restricted Subsidiary, 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(6) Additional Assets, and (7) any Designated Noncash Consideration received by the Borrower or any of its Restricted Subsidiaries in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making having an Asset Disposition Offer aggregate Fair Market Value, taken together with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually Designated Noncash Consideration received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 clause (7), not to exceed an aggregate amount at any time outstanding equal to the “greater of $35,000,000 and 3.5% of Consolidated Total Assets (with the Fair Market Value of each item of Designated Noncash Consideration being measured on the date a legally binding commitment for such Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes was entered into and Pari Passu Indebtedness validly tendered without giving effect to subsequent changes in response to the Asset Disposition Offervalue).
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 1 contract
Sources: First Lien Credit Agreement (PharMEDium Healthcare Holdings, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) contractually agreeing to 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 an Officer or the Board of Directors (including as to the value of the Issuerall non-cash consideration), of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); andDisposition;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After an amount equal to 100% of the receipt of Net Available Cash from an such Asset DispositionDisposition is applied by the Company or such Restricted Subsidiary, as the Issuer case may be:
(a) first, to the extent the Company or a any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects (or indirectly is required by the terms of any Indebtedness), to prepay, repay or purchase Secured Indebtedness (at the option other than Disqualified Stock or Subordinated Obligations) of the Issuer Company or such Secured Indebtedness (other than any Preferred Stock or Guarantor Subordinated Obligations) of a Restricted Subsidiary):
Subsidiary (1in each case other than Indebtedness owed to the Company or an Affiliate of the Company) or the Senior Credit Agreement (whether the Senior Credit Agreement is secured or unsecured) within 365 days from the later of (A) the date of such Asset Disposition and (B) or the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repurchase or repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (a), the Issuer Company or such Restricted Subsidiary will retire such Indebtedness Indebtedness, and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaidrepaid or repurchased; and
(b) second, purchased or redeemed; to the extent of the balance of such Net Available Cash after application in accordance with clause (ii) unless included in Section 4.08(c)(1)(B)(ia), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer Company or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) or the receipt of such Net Available Cash; provided, howeverthat, that any such reinvestment investments in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by within 60 days preceding the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant will be deemed to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such be an investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses in Additional Assets. Clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), and (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner above shall not prohibited by this Indenturebe applicable to Assets Held for Sale.
(db) Any Net Available Cash from Asset Dispositions that is are not applied or invested or committed to be applied or invested as provided in Section 4.08(c) the preceding paragraph will be deemed to constitute “"Excess Proceeds.” " On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such an Asset Disposition and (B) the receipt of such Net Available CashDisposition, if the aggregate amount of Excess Proceeds exceeds $100 15.0 million, the Issuer Company will be required within ten (10) Business Days thereof to make an offer (“"Asset Disposition Offer”") to all holders Holders of the Notes and, Securities and to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Disposition ("Pari Passu Notes"), to purchase the maximum principal amount of such Notes Securities and any such Pari Passu Indebtedness Notes to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes cash in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes the Securities and 100% of the principal amount of Pari Passu Indebtedness, in each case, Notes plus accrued and unpaid interest, if any, to, but not including, interest to the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu IndebtednessNotes, as applicable, and in the each case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof1,000. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes Securities and Pari Passu Indebtedness Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Issuer and the Restricted Subsidiaries Company may use any remaining Excess Proceeds (orfor any other purpose which is not expressly prohibited by this Indenture, in the case of an Advance Offerincluding, the Advance Portion) for general corporate purposes, but not limited to the extent not prohibited by the other covenants contained in this Indenturepurchase of Subordinated Obligations and Guarantor Subordinated Obligations. If the aggregate principal amount of the Notes Securities surrendered in any Asset Disposition Offer by Holders thereof and other Pari Passu Indebtedness Notes surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), Trustee shall select the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes Securities and Pari Passu Indebtedness Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes Securities and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)Notes. Upon completion of any such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h1) The Asset Disposition Offer, in so far as it relates to the Notes, Offer will remain open for a period of not less than 20 Business Days following its commencement or such shorter commencement, except to the extent that a longer period of time is required to comply with Section 14(e) of the Exchange Act and any other by applicable securities laws or regulations in connection with the Asset Disposition Offer law (the “"Asset Disposition Offer Period”"). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “"Asset Disposition Purchase Date”"), the Issuer Company will purchase the principal amount of Notes and, to the extent it elects, Securities and Pari Passu Indebtedness Notes required to be purchased by it pursuant to this Section 4.08 3.7 (the “"Asset Disposition Offer Amount”") or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes Securities and Pari Passu Indebtedness Notes validly tendered in response to the Asset Disposition Offer.
(i2) 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 Note is registered at the close of business on such record date, and no additional interest will be payable to Holders of the Securities who tender Securities pursuant to the Asset Disposition Offer.
(3) On or before the Asset Disposition Purchase Date, the Issuer Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes Securities and Pari Passu Indebtedness Notes or portions of Notes Securities and Pari Passu Indebtedness Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes Securities and Pari Passu Indebtedness Notes so validly tendered and not properly withdrawn andwithdrawn, in the each case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) 1,000. The Issuer Company will deliver to the Trustee an Officer’s Officers' Certificate stating that such Notes Securities or portions thereof were accepted for payment by the Issuer Company in accordance with the terms of this Section 43.7 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. 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 or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Securities or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Security, and the Trustee, upon delivery of an Officers' Certificate from the Company will authenticate and mail or deliver such new Security to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Security will be in a principal amount of $1,000 or an integral multiple of $1,000. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Notes. 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 (other than Guarantor Subordinated Obligations or Preferred Stock) of any Restricted Subsidiary of the Company and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition (in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with clause (a) above); and
(2) securities, notes or other obligations received by the Company or any Restricted Subsidiary of the Company from the transferee that are converted within 90 days 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 Section 3.7. 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 of any conflict.
Appears in 1 contract
Sources: Indenture (Russell Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1i) the Issuer 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 (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition, as such fair market value shall be determined in good faith by the Company, which determination shall be conclusive (including as to the value of all noncash consideration),
(ii) in the case of any Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is Dispositions) having a Permitted Asset Swap)fair market value of $25.0 million or more, at least 7575.0% of the consideration from such therefor (excluding, in the case of an Asset Disposition (or such series of related Asset Dispositions (excluding Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than that are not Indebtedness)) received by the Company or such Restricted Subsidiary is in the form of cash, together with all other Asset Dispositions since and
(iii) an amount equal to 100% of the Issue Date (except to the extent any Net Available Cash from such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received is applied by the Issuer Company (or such any Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.) as follows:
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and first, either (B) the receipt of such Net Available Cash (ix) to prepay, repay, purchase the extent the Company elects (or redeem is required by the terms of any Secured Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i(other than Subordinated Obligations), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Senior Indebtedness of the Issuer Company or any Guarantor, 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, purchase Subsidiary Guarantor or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness that is secured on assets or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness (in each case other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer Company or any a Restricted Subsidiary); (iv) to purchase within 450 days after the Notes through open-market purchases at a price equal to or higher than 100% later of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, the date of purchase (subject to such Asset Disposition and the right date of Holders receipt of record on the relevant record date to receive interest due on the relevant interest payment date) such Net Available Cash, or (v) to redeem the Notes as described under Section 3.07;
(2y) to the extent that the Issuer Company or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 450 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, or, if such investment in Additional Assets is a project authorized by the aggregate amount Board of Excess Proceeds exceeds $100 millionDirectors that will take longer than such 450 days to complete, the Issuer will be required within ten period of time necessary to complete such project;
(10B) Business Days thereof 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 (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer Company or a Guarantor such Restricted Subsidiary elects, or the Issuer or a Guarantor is required by the terms thereof) to purchase, redeem or repay any other Senior Indebtedness of the Company or a Restricted Subsidiary, pursuant and subject to Section 411(b) and Section 411(c) and the agreements governing such other outstanding Pari Passu Indebtedness; and
(C) third, to all holders 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 Subsidiary 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 411, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 411 except to the extent that the aggregate Net Available Cash from all Asset Dispositions or equivalent amount that is not applied in accordance with this Section 411 exceeds $75.0 million. If the aggregate principal amount of Notes and/or other Indebtedness of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to clause (B) above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to the denominator of which is the Asset Disposition Offer applies that may be purchased out sum of the Excess Proceeds, at an offer price in respect outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. For the purposes of clause (ii) of paragraph (a) above, the following are deemed to be cash: (1) Temporary Cash Investments and Cash Equivalents, (2) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days, (5) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary, (6) Additional Assets and (7) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause, not to exceed an aggregate amount at any time outstanding equal to the greater of $125.0 million and 2.5% of Consolidated Tangible Assets (andwith the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(b) In the event of an Asset Disposition that requires the purchase of Notes pursuant to Section 411(a)(iii)(B), the Company will be required to purchase Notes tendered pursuant to an offer by the Company for the Notes (the “Offer”) at a purchase price of 100% of their principal amount plus accrued and unpaid interest to the date of purchase in accordance with the procedures (including prorating in the case event of any Pari Passu Indebtedness, an offer oversubscription) set forth in Section 411(c). If the aggregate purchase price of no more thanthe Notes tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of Notes, the remaining Net Available Cash will be available to the Company for use in accordance with Section 411(a)(iii)(B) (to repay other Indebtedness of the Company or a Restricted Subsidiary) or Section 411(a)(iii)(C). The Company shall not be required to make an Offer for Notes pursuant to this Section 411 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 411(a)(iii)(A)) is less than $75.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). No Note will be repurchased in part if less than the Minimum Denomination in original principal amount of such Note would be left outstanding.
(c) The Company shall, not later than 45 days after the Company becomes obligated to make an Offer pursuant to this Section 411, mail a notice to each Holder with a copy to the Trustee 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 a portion of such Holder’s Notes at a purchase price in cash equal to 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each casethereof, plus accrued and unpaid interest, if any, to, but not including, 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 411, that a Holder must follow in accordance with order to have its Notes purchased; and (5) the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case amount of the NotesOffer. If, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce upon the principal amount at maturity expiration of the Notes held by any holder to below $200,000. The Issuer may satisfy period for which the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (orremains open, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, Holder exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) Company shall be allocated among select the Notes and Pari Passu Indebtedness 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 the aggregate principal amount Minimum Denomination or integral multiples of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated $1,000 in dollars, such Indebtedness excess thereof shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined belowpurchased). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(gd) To The Company will comply, to the extent that any portion applicable, with the requirements 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount repurchase of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to 411. To the extent lawful, accept for payment, on a pro rata basis to that the extent necessary, the Asset Disposition Offer Amount provisions of Notes and Pari Passu Indebtedness any securities laws or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance regulations conflict with the terms provisions of this Section 4411, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 411 by virtue thereof.
Appears in 1 contract
Sources: Indenture (HSI IP, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(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 7.5% of LTM EBITDA, at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Escrow Release Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis basis), received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(13) within 365 450 days from the later of (A) the date of such Asset Disposition and (B) the receipt of the Net Available Cash from such Asset Disposition (as may be extended by an Acceptable Commitment or a Second Commitment as set forth below, the “Proceeds Application Period”), an amount equal to the Applicable Percentage of such Net Available Cash (the “Applicable Proceeds”) is applied:
(i) to the extent the Issuer or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness), (A) to prepay, repay, repay or purchase or redeem any Indebtedness incurred under Section 4.04(b)(1of a Non-Guarantor or that is secured by a Lien (in each case, other than Indebtedness owed to the Issuer or any Restricted Subsidiary) or Indebtedness under the Credit Agreements (or any Guarantor IndebtednessRefinancing Indebtedness in respect thereof); provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; (iiB) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; or (iiiC) to prepaymake an offer (in accordance with the procedures set forth below for an Asset Disposition Offer), repay, purchase redeem the Notes as provided under Section 5.7 or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07privately negotiated transactions;
(2ii) to the extent the Issuer or such any Restricted Subsidiary elects, to invest (including capital expenditures) in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from or invest (including capital expenditures) in any one or more business, properties or assets that replace the later of (i) businesses, properties and/or assets that are the date subject of such Asset Disposition and Disposition, with any such investment made by way of a capital or other lease valued at the present value of the minimum amount of payments under such lease (ii) as reasonably determined by the receipt of such Net Available CashIssuer); provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or shall be treated as a permitted application of Applicable Proceeds from the date of such commitment approved by with the Board of Directors of the Issuer good faith expectation that is executed or approved within an amount equal to Applicable Proceeds will be applied to satisfy such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
commitment (3an “Acceptable Commitment”) to make a capital expenditure within 365 days from and, in the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, event that any Acceptable Commitment is later cancelled or terminated for any reason before such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of amount is applied in connection therewith, the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such 365th daycancellation or termination; or
(4iii) any combination of clauses the foregoing; provided that (1) through (3) of Section 4.08(c), provided that, pending the final application of the amount of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Applicable Proceeds pursuant to this Section 4.08(c)3.5, the Issuer and or the applicable Restricted Subsidiaries may apply such Applicable Proceeds temporarily to reduce Indebtedness (including under the Credit Agreements) or otherwise invest apply such Net Available Cash Applicable Proceeds in any manner not prohibited by this Indenture, and (2) the Issuer (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Applicable Proceeds attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (b) above with respect to such Asset Disposition.
(db) Any Net Available Cash from If, with respect to any Asset Dispositions Disposition, at the expiration of the Proceeds Application Period with respect to such Asset Disposition, there remains Applicable Proceeds in excess of the greater of $200.0 million and 15.0% of LTM EBITDA (such amount of Applicable Proceeds that is not applied or invested or committed are equal to be applied or invested as provided the greater of $200.0 million and 15.0% of LTM EBITDA, “Declined Excess Proceeds,” and such amount of Applicable Proceeds that are in Section 4.08(c) will be deemed to constitute excess of the greater of $200.0 million and 15.0% of LTM EBITDA, “Excess Proceeds.” On ”), then subject to the 366th day (or the 546th day, in the case of any Net Available Cash committed limitations with respect to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 millionForeign Dispositions set forth below, the Issuer will be required within ten (10) Business Days thereof to shall make an offer (an “Asset Disposition Offer”) no later than ten business days after the expiration of the Proceeds Application Period to all holders Holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is if required by the terms of other outstanding any Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness Indebtedness, to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies Indebtedness, as appropriate, on a pro rata basis, that may be purchased out of the such Excess Proceeds, if any, at an offer price price, in respect the case of the Notes Notes, in cash in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of thereof (or in the event such Notes and other Indebtedness was issued with original issue discount, 100% of the principal amount of Pari Passu Indebtedness, in each caseaccreted value thereof), plus accrued and unpaid 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 or and the agreements agreement governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 2,000 and in integral multiples of $1,000 in excess thereof. No such 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 in part shall reduce the principal amount at maturity date to each Holder of the Notes held by any holder to below $200,000at such Holder’s registered address or otherwise in accordance with the applicable procedures of DTC. The Issuer may satisfy the foregoing obligations obligation with respect to any Net Available Cash from an Asset Disposition the Applicable Proceeds by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture expiration of the Proceeds Application Period (the “Advance Offer”) with respect to all or a part of the available Net Available Cash Applicable Proceeds (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”)Indenture.
(e) [Reserved].
(fc) To the extent that the aggregate amount (or accreted value, as applicable) of Notes and and, if applicable, any other Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to or otherwise surrendered in connection with an Asset Disposition Offer is less than the made with Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)) is less than the amount offered in an Asset Disposition Offer, the Issuer and the Restricted Subsidiaries may use include any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) in Declined Excess Proceeds, and use such Declined Excess Proceeds for general corporate purposes, to the extent any purpose not otherwise prohibited by the other covenants contained in this Indenture. If the aggregate principal amount (or accreted value, as applicable) of the Notes surrendered in or, if applicable, Pari Passu Indebtedness validly tendered pursuant to any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer shall allocate the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount (or accreted value, as applicable) of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such ; provided that no Notes or other Pari Passu Indebtedness not denominated will be selected and purchased in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)an unauthorized denomination. Upon completion of any Asset Disposition Offer, the amount of Applicable Proceeds and Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(gd) 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 in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in U.S. dollars that is actually received by the IssuerIssuer upon converting such portion into U.S. dollars.
(he) The 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 Offerby a Foreign Subsidiary (a “Foreign Disposition”) is (x) prohibited or delayed by applicable local law, in so far as it relates (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous organizational or administrative impediments from being repatriated to the NotesUnited States, the portion of such Net Available Cash so affected will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time be required to comply be applied in compliance with this Section 14(e) of 3.5, and such amounts may be retained by the Exchange Act and any other applicable securities laws Foreign Subsidiary so long, but only so long, as the applicable local law, documents or regulations in connection with agreements will not permit repatriation to the Asset Disposition Offer United States (the “Asset Disposition Offer Period”Issuer hereby agreeing to use reasonable efforts (as determined in the Issuer’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). No , 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 (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 such repatriation actually occurs) in compliance with this Section 3.5 and (ii) to the termination extent that the Issuer 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 repatriation whereby doing so the Issuer, any Restricted Subsidiary, or any of their respective affiliates and/or equity owners would incur a tax liability, including a tax dividend, deemed dividend 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 Asset Disposition Offer Period foregoing provisions shall not, for the avoidance of doubt, constitute a Default or an Event of Default.
(f) For the “Asset Disposition Purchase Date”purposes of Section 3.5(a)(2), the following will be deemed to be cash:
(i) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Issuer will purchase or a Restricted Subsidiary (other than Subordinated Indebtedness of the principal amount Issuer or a Guarantor) and the release of Notes andthe Issuer or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition;
(ii) securities, notes or other obligations received by the Issuer or any Restricted Subsidiary of the Issuer from the transferee that are converted by the Issuer or such Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Disposition;
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent it electsthat the Issuer and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition;
(iv) consideration consisting of Indebtedness of the Issuer (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Issuer or any Restricted Subsidiary; and
(v) any Designated Non-Cash Consideration received by the Issuer or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, Pari Passu Indebtedness required to be purchased by it taken together with all other Designated Non-Cash Consideration received pursuant to this Section 4.08 3.5 that is at that time outstanding, not to exceed the greater of $200.0 million and 15.0% 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).
(g) Upon the commencement of an Asset Disposition Offer Amount”) orOffer, if less than the Asset Disposition Offer Amount has been so validly tenderedIssuer shall send, or cause to be sent, electronically or by first class mail, a notice to the Trustee and to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes and Pari Passu Indebtedness validly tendered in response pursuant to the Asset Disposition Offer.
(i) On or before . Any Asset Disposition Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Disposition Purchase DateOffer, shall state:
(1) that the Issuer willAsset Disposition Offer is being made pursuant to this Section 3.5 and that, to the extent lawful, accept all Notes tendered and not withdrawn shall be accepted for payment (unless prorated);
(2) the Asset Disposition payment amount, the Asset Disposition offered price, and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and not later than 60 days from the date such notices is mailed (the “Asset Sale Payment Date”);
(3) that any Notes not tendered or accepted for payment shall continue to accrue interest in accordance with the terms thereof;
(4) that, unless the Issuer defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrue interest on and after the Asset Sale Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to any Asset Disposition Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent at the address specified in the notice at least 3 Business Days before the Asset Sale Payment Date;
(6) that Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than 2 Business Days prior to the Asset Sale Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Note purchased;
(7) that if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition payment amount, the Issuer shall select the Notes to be purchased on a pro rata basis to (with such adjustments as may be deemed appropriate by the extent necessary, the Asset Disposition Offer Amount of Issuer so that only Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in 2,000 or integral multiples of $1,000 remain outstanding after purchase); and
(8) that Holders whose Notes were purchased only in excess thereofpart shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry).
(jh) The Issuer will deliver If the Asset Sale Payment Date is on or after a record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer Person in accordance with the terms of this Section 4.whose name a Note is r
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition unless:
unless (1) the Issuer 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 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 advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors Directors, which determination shall be conclusive evidence of the Issuercompliance with this provision), of the shares equity and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap)Disposition; and
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), A) at least 75% of the consideration received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”) or (B) the fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received is applied by the Issuer Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is in required by the form terms of cashany Indebtedness), Cash Equivalents to prepay, repay, redeem or Temporary Cash Investments.
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option purchase Senior Indebtedness of the Issuer Company or such Restricted Subsidiary):
any Subsidiary Guarantor or Indebtedness (1other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not a Subsidiary Guarantor (other than Indebtedness owed to the Company or an Affiliate of the Company) within 365 540 days from the later of (A) the date of such Asset Disposition and (B) or the receipt of such Net Available Cash (i) to prepayCash, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any provided such prepayment, repayment repayment, redemption or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i)permanently retires, the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause reduces the related loan commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, purchased redeemed or redeemedpurchased; (iiB) unless included second, to the extent of the balance of such Net Available Cash after application in Section 4.08(c)(1)(B)(iaccordance with clause (A), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer or such Restricted Subsidiary Company elects, to invest in or purchase or commit to invest in or purchase acquire Additional Assets (including by means of an investment or to make capital expenditures in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) Oil and Gas Business within 365 540 days from the later of (i) the date of such Asset Disposition and (ii) or the receipt of such Net Available Cash; providedand (C) third, 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 the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Senior Indebtedness) in an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness (which may include Priority Lien Debt).
(b) Notwithstanding Section 4.07(a), the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with Section 4.07(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions, which is not applied in accordance with Section 4.07(a), exceeds $40.0 million during any calendar year. For the purposes of Section 4.07(a), the following are deemed to be cash or cash equivalents (i) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Securities or any Subsidiary Guarantee) that are assumed by the transferee of any such reinvestment in Additional Assets made Asset Disposition pursuant to (A) a definitive binding customary novation agreement that releases the Company or such Restricted Subsidiary from further liability or (B) an assignment agreement that includes, in lieu of such a commitment approved release, the agreement of the transferee or its parent company to indemnify and hold harmless the Company or such Restricted Subsidiary from and against any loss, liability or cost in respect of such assumed liability and (ii) any non-Cash Consideration received by the Board Company or any Restricted Subsidiary from the transferee that is converted, monetized, sold or exchanged by the Company or such Restricted Subsidiary into cash or cash equivalents within 120 days of Directors receipt. Notwithstanding the foregoing, the 75% limitation referred to in Section 4.07(a)(2) shall be deemed satisfied with respect to any Asset Disposition in which the cash or cash equivalents portion of the Issuer that consideration received therefrom, determined in accordance with the foregoing provision on an after-tax basis, is executed equal to or approved greater than what the after-tax proceeds would have been had such Asset Disposition complied with the aforementioned 75% limitation. The requirement of Section 4.07(a)(3)(B) shall be deemed to be satisfied if an agreement (including a lease, whether a capital lease or an operating lease) committing to make the acquisitions or expenditures referred to therein is entered into by the Company or its Restricted Subsidiary within the time period specified in such time will satisfy this requirement, so long as clause and such investment or commitment to invest Net Available Cash is consummated subsequently applied in accordance with such agreement within 180 days of six months following such 365th day;agreement.
(3c) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Indebtedness of the Company) pursuant to Section 4.07(a)(3)(C), the Company shall make a capital expenditure within 365 days from such offer to purchase Securities on or before the 541st day after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof and shall purchase Securities tendered pursuant to make an offer by the Company for the Securities (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer and if required or a Guarantor elects, or the Issuer or a Guarantor is required permitted by the terms of any other outstanding Pari Passu Senior Indebtedness, to all the holders of such other outstanding Pari Passu Indebtedness to Indebtedness) at a purchase the maximum price of 100% of their principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (andor, in the case event (x) such other Senior Indebtedness (other than the Existing 2021 Second Lien Notes, the Existing 2022 Second Lien Notes or the Existing 2024 Convertible Senior Notes) of any Pari Passu Indebtednessthe Company was issued with original issue discount greater than 2.5%, an offer price of no more thanand (y) the Existing 2021 Second Lien Notes are outstanding, 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each caseaccreted value thereof) without premium, plus accrued and but unpaid interestinterest (or, in respect of such other Senior Indebtedness of the Company, such lesser price, if any, to, but not including, as may be provided for by the date terms of purchase, such Senior Indebtedness of the Company) in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture or Section 3.02; provided, however, that if the agreements governing terms of an asset sale covenant relating to Secured Debt outstanding as of the Pari Passu Indebtedness, as applicableIssue Date would require that such Secured Debt be included in an offer hereunder for the Securities, and the terms of such Secured Debt require that the price offered for the Securities in such offer be at a price not greater than 100% of accreted value, the Company may make the offer for the Securities hereunder at a price of 100% of accreted value so long as the Company has previously made an offer with the then remaining Net Available Cash from the applicable Asset Disposition for the Securities under Section 4.07(a)(3)(A) or otherwise at a price of 100% of principal amount.. If the aggregate purchase price of the securities tendered exceeds the Net Available Cash allotted to their purchase, the Company shall select the securities to be purchased on a pro rata basis but in round denominations, which in the case of the Notes, in Securities shall be minimum denominations of $200,000 2,000 principal amount and in integral whole multiples of $1,000 in excess thereof. No The Company shall not be required to make such an offer to purchase in part shall reduce the principal amount at maturity Securities (and other Senior Indebtedness of the Notes held by any holder Company) pursuant to below this Section 4.07 if the Net Available Cash not applied or invested as provided in Section 4.07(a)(3)(A) or (B) is less than $200,000. The Issuer may satisfy the foregoing obligations 20.0 million (which lesser amount shall be carried forward for purposes of determining whether such an offer is required with respect to any the Net Available Cash from an any subsequent Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined belowDisposition). Upon completion of any Asset Disposition Offersuch an offer to purchase, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations deemed to be reduced by the aggregate amount of Excess Proceedssuch offer.
(gd) To The Company shall comply, to the extent that any portion applicable, with the requirements 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”repurchase of Securities pursuant to Section 4.07(c). No later than five (5) Business Days after To the termination extent that the provisions of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”any securities laws or regulations conflict with provisions of Section 4.07(c), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance Company shall comply with the terms applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 4.07(c) by virtue of this Section 4its compliance with such securities laws or regulations.
Appears in 1 contract
Sources: Indenture (Denbury Resources Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors (including as to the value of the Issuerall non-cash consideration), of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); andDisposition;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After an amount equal to 100% of the receipt of Net Available Cash from an such Asset DispositionDisposition is applied by the Company or such Restricted Subsidiary, as the Issuer case may be:
(A) to the extent the Company or a any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects or indirectly (at the option is required to do so, to prepay, repay, redeem, defease or purchase Indebtedness of the Issuer Company or such a Restricted Subsidiary):
Subsidiary (1other than Capital Stock, Disqualified Stock, Subordinated Obligations, Guarantor Subordinated Obligations or Indebtedness owed to the Company or an Affiliate of the Company) within 365 330 days from the later of (A) the date of such Asset Disposition and (B) or the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repayment repayment, redemption, defeasance or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (3)(A), the Issuer Company or such Restricted Subsidiary will shall retire such Indebtedness and will shall cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased redeemed, defeased or redeemedpurchased; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;and
(2B) to the extent the Issuer Company or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 330 days from the later of (i) the date of such Asset Disposition and (ii) or the receipt of such Net Available Cash; provided, however, provided that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses clause (1), (2), (33)(A) or clause (43)(B) of this Section 4.08(c6.11(a), the Issuer Company and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this the Indenture.
(d) . Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will the preceding paragraph shall be deemed to constitute “Excess Proceeds.” On the 366th 331st day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such an Asset Disposition and (B) the receipt of such Net Available CashDisposition, if the aggregate amount of Excess Proceeds exceeds $100 20.0 million, the Issuer will Company shall be required within ten to (10and may, in satisfaction of such requirement, at any time prior to such day) Business Days thereof to make an offer (an “Asset Disposition Offer”) to all holders Holders of the Notes and, and to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders Holders of such other outstanding Pari Passu Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”), to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness Notes to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes cash in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, Notes plus accrued and unpaid interest, if any, to, but not including, interest to the date of purchase, in accordance with the procedures set forth in this the Indenture or the agreements governing the Pari Passu IndebtednessNotes, as applicable, and in the each case of the Notes, in minimum denominations of $200,000 2,000 and in larger integral multiples of $1,000 in excess thereof1,000. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Issuer and the Restricted Subsidiaries Company may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, subject to the extent not prohibited by the other covenants contained in this the Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders thereof and other Pari Passu Indebtedness Notes surrendered by holders Holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) Trustee shall be allocated among select the Notes and Pari Passu Indebtedness Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)Notes. Upon completion of any such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(hb) The Asset Disposition Offer, in so far as it relates to the Notes, will Offer shall remain open for a period of not less than 20 Business Days following its commencement or such shorter commencement, except to the extent that a longer period of time is required to comply with Section 14(e) of the Exchange Act and any other by applicable securities laws or regulations in connection with the Asset Disposition Offer law (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will Company shall purchase the principal amount of Notes and, to the extent it elects, and Pari Passu Indebtedness Notes required to be purchased by it pursuant to this Section 4.08 6.11 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness Notes validly tendered in response to the Asset Disposition Offer.
(i) . If the Asset Disposition Purchase Date is on or after a Regular Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such Regular Record Date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Issuer willCompany shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness Notes or portions of Notes and Pari Passu Indebtedness Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Indebtedness Notes so validly tendered and not properly withdrawn andwithdrawn, in the each case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) 1,000. The Issuer will Company shall deliver to the Trustee an Officer’s Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer Company in accordance with the terms of this Section 46.11 and, in addition, the Company shall deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. The Company or the Paying Agent, as the case may be, shall promptly (but in any case not later than five Business Days after the termination of the Asset Disposition Offer Period) mail or deliver to each tendering Holder of Notes or Holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Notes or Pari Passu Notes so validly tendered and not properly withdrawn by such Holder or lender, as the case may be, and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note shall be in a principal amount of $2,000 or a larger integral multiple of $1,000. In addition, the Company shall take any and all other actions required by the agreements governing the Pari Passu Notes. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date.
(c) For the purposes of clause (2) of Section 6.11(a) of this Third Supplemental Indenture only, the following shall be deemed to be cash:
(1) the release of the Company and its Restricted Subsidiaries from all liability on Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the Company or Indebtedness of a Restricted Subsidiary (other than Guarantor Subordinated Obligations or Disqualified Stock of any Subsidiary Guarantor) in connection with such Asset Disposition, whether by assumption and release, satisfaction and discharge, or otherwise (in which case the Company shall, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with clause (3)(A) of Section 6.11(a) of this Third Supplemental Indenture); 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 or Cash Equivalents.
(d) The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any Asset Swaps, unless:
(1) at the time of entering into such Asset Swap and immediately after giving effect to such Asset Swap, no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(2) in the event such Asset Swap involves the transfer by the Company or any Restricted Subsidiary of assets having an aggregate fair market value, as determined by the Board of Directors of the Company in good faith, in excess of $20.0 million, the terms of such Asset Swap have been approved by a majority of the members of the Board of Directors of the Company.
(e) The Company shall comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 6.11. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 6.11, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Indenture by virtue of any conflict.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the IssuerCompany, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Original Notes Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer Company or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer Company or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness); provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i4.08(c)(1), the Issuer Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in this Section 4.08(c)(1)(B)(i4.08(c)(1), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of any of the Issuer or any Guarantor, Issuers 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, purchase or redemption; provided that the Issuer Company or such Guarantorthe Co-Issuer, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases Issuers purchase through open-open market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such the Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, for an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of any of the Issuer or a Guarantor Issuers or Indebtedness owed to the Issuer Company or any Restricted Subsidiary); or (iv) to purchase the Notes through open-open market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) ), or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer Company or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer Company that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer Company that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided provided, that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer Company and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) hereof will be deemed to constitute “Excess Proceeds.” ”. On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer Company pursuant to clause (2Section 4.08(c)(2) or (3Section 4.08(c)(3) of Section 4.08(c)hereof) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 50 million, the Issuer Issuers will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer Company or a Guarantor the Co-Issuer, as applicable, elects, or the Issuer Company or a Guarantor is the Co-Issuer, as applicable, are required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Issuer Company and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer Company that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(gf) To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than dollarsthe currency in which the relevant Notes are denominated, the amount thereof payable in respect of the such Notes shall not exceed the net Dollar Equivalent amount of funds in the amount currency in which such Notes are denominated that is actually received by the IssuerCompany upon converting such portion of the Net Available Cash into such currency.
(hg) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement (or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer Offer) (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer Issuers will purchase the principal amount of Notes and, to the extent it electsthey elect, Pari Passu Indebtedness required to be purchased by it them pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(ih) On or before the Asset Disposition Purchase Date, the Issuer Issuers will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(ji) The Issuer Company will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer Company in accordance with the terms of this covenant. The Issuers or the Paying Agent, as the case may be, will promptly (but in any case not later than five (5) Business Days after termination of the Asset Disposition Offer Period) mail or deliver to each tendering Holder of Notes an amount equal to the purchase price of the Notes so validly tendered and not properly withdrawn by such Holder, and accepted by the Issuers for purchase, and the Issuers will promptly issue a new Note (or, in the case of Global Notes, cause the Paying Agent to reduce the aggregate principal amount and amend the applicable Global Note pursuant to Section 2.06(g) hereof and in the case of Definitive Registered Notes, deliver or cause to be delivered to the relevant Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Company), and the Trustee, upon receipt of an Officer’s Certificate from the Company, will, via an authenticating agent, authenticate and mail or deliver (or cause to be transferred by book-entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount with a minimum denomination of $200,000. Any Note not so accepted will be promptly mailed or delivered (or transferred by book-entry) by the Company to the Holder thereof.
(j) For the purposes of Section 4.08(b)(2), the following will be deemed to be cash:
(1) the assumption by the transferee (or other extinguishment in connection with the transactions relating to such Asset Dispositions) of Indebtedness and any other liabilities (as recorded on the balance sheet of the Company or any Restricted Subsidiary or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Company’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereof if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company) of the Company or any Restricted Subsidiary (other than Subordinated Indebtedness of any of the Issuers) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness 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 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 (as applicable) are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition;
(4) consideration consisting of Indebtedness of any of the Issuers (other than 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 covenant that is at that time outstanding, not to exceed (at the time of the receipt of such Designated Non-Cash Consideration or, at the Company’s option, at the time of contractually agreeing to such Asset Disposition) the greater of $150 million and 1.5% of Total Assets (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).
(k) The Issuers 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 Indenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.08, the Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached their obligations under this Indenture by virtue of any conflict.
Appears in 1 contract
Sources: Indenture (Altice USA, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company and any Permitted Affiliate Parent will not, and will not permit any of its the Restricted Subsidiaries to, without the consent of the Required Lenders, make any Asset Disposition unless:
(1) the Issuer Company, such Permitted Affiliate Parent 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 conclusively in good faith by an Officer or the Board of Directors or senior management of the IssuerCompany or such Permitted Affiliate Parent (including as to the value of all non-cash consideration), of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); andDisposition;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent unless the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company, such Permitted Affiliate Parent or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) is reinvested or applied to prepay the receipt of such Net Available Cash (i) to prepay, repay, purchase Loans or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Other Applicable Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount in accordance with Section 2.05(b)(i) of Notes at least equal this Agreement.
(b) For the purposes of this Section 4.10, the following will be deemed to the proportion that be cash: 211
(x1) the total aggregate principal amount assumption by the transferee of Notes outstanding bears to Indebtedness (yother than Subordinated Obligations) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase any Loan Party or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor Loan Party and the release of such Loan Party or any such Restricted Subsidiary from all liability on such Indebtedness that is secured on assets in connection with such Asset Disposition (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on which case the relevant record date Borrower will, without further action, be deemed to receive interest due on the relevant interest payment datehave applied such deemed cash to Indebtedness in accordance with Section 2.05(b)(i) or (v) to redeem the Notes as described under Section 3.07of this Agreement);
(2) to securities, notes or other obligations received by the extent Company, a Permitted Affiliate Parent or any Restricted Subsidiary from the Issuer transferee that are convertible by the Company, such Permitted Affiliate Parent or such Restricted Subsidiary elects, to invest in into cash or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by Equivalents within 180 days following the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date closing of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th dayDisposition;
(3) to make Indebtedness of any Restricted Subsidiary that is no longer a capital expenditure within 365 days from the later of (A) the date Restricted Subsidiary as a result of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes andDisposition, to the extent that the Issuer or a Guarantor electsCompany, or the Issuer or a Guarantor is required by the terms any Permitted Affiliate Parent and each other Restricted Subsidiary are released from any guarantee of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% payment of the principal amount of such Notes and 100Indebtedness in connection with such Asset Disposition;
(4) consideration consisting of Indebtedness of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary;
(5) any Designated Non-Cash Consideration received by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value not to exceed 25.0% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, consideration from such Asset Disposition (excluding any consideration received from such Asset Disposition in accordance with Section 4.10(b)(1) to Section 4.10(b)(4)) (with the procedures set forth 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 this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and value);
(6) in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect addition to any Net Available Designated Non-Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn Consideration received pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance PortionSection 4.10(b)(5), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Designated Non-Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually Consideration received by the Issuer.
(h) The Company, a Permitted Affiliate Parent or any Restricted Subsidiary in such Asset Disposition OfferDispositions having an aggregate fair market value, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply taken together with Section 14(e) of the Exchange Act and any all other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it Designated Non-Cash Consideration received pursuant to this Section 4.08 4.10(b)(6) that is at that time outstanding, not to exceed the greater of $250.0 million and 5.0% of Total Assets (with the “Asset Disposition Offer Amount”) or, if less than fair market value of each item of Designated Non-Cash Consideration being measured at the Asset Disposition Offer Amount has been so validly tendered, all Notes time received and Pari Passu Indebtedness validly tendered without giving effect to subsequent changes in response to the Asset Disposition Offer.value); and
(i7) On consideration consisting of securities or before obligations issued, insured or unconditionally guaranteed by a government (or any agency or instrumentality thereof) of a country where the Asset Disposition Purchase DateCompany, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness Permitted Affiliate Parent or portions of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, any Restricted Subsidiary is organized or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereoflocated.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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), in each case, as determined in good faith by an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents;
(c3) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a any of its Restricted SubsidiarySubsidiaries, as the case may be, may at its respective option will apply such Net Available Cash directly from any Asset Disposition:
(i) (A) to prepay, repay or indirectly purchase any Indebtedness of a Non-Guarantor or Indebtedness that is secured by a Lien (at the option of in each case, other than Indebtedness owed to the Issuer or such any Restricted Subsidiary):
) or Indebtedness under the Credit Agreement (1or any Refinancing Indebtedness in respect thereof) within 365 days from the later of (Aa) the date of such Asset Disposition and (Bb) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; or (iiB) unless included in Section 4.08(c)(1)(B)(i), to prepay, repayrepay or purchase Pari Passu Indebtedness; provided further that, purchase to the extent the Issuer redeems, repays or redeem any repurchases Pari Passu Indebtedness of pursuant to this clause (B), the Issuer 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 any Guarantor, at a price of no more than above 100% of the principal amount of such Pari Passu Indebtedness plus accrued and unpaid interest thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to the date of such prepayment, repayment, all Holders to purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases their Notes at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to plus the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notesaccrued but unpaid interest, plus accrued and unpaid interest toif any, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtednesswould otherwise be prepaid; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;and/or
(2ii) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer shall be treated as a permitted application of net Proceeds from the date of such commitment with the good faith expectation that is executed or approved within such time net Proceeds will be applied to satisfy this requirement, so long as such investment is consummated commitment within 180 days of such 365th daycommitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the net Proceeds are applied in connection therewith, the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; or
(4) provided further that if any combination of clauses (1) through (3) of Section 4.08(c)Acceptable Commitment is later cancelled or terminated for any reason before such net Proceeds are applied, then such net Proceeds shall constitute Excess Proceeds; provided that, pending the final application of any such Net Available Cash in accordance with clauses clause (1), (2), (3i) or clause (4ii) of Section 4.08(c)above, the Issuer and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest use such Net Available Cash in any manner not prohibited by this Indenture.
(diii) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) the preceding paragraph will be deemed to constitute “Excess Proceeds.” under this Indenture. On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such an Asset Disposition and (B) or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds under this Indenture exceeds $100 50.0 million, the Issuer will within 10 Business Days be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders Holders of the Notes issued under such indenture and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms to all holders of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case applicable provided that no Note of the Notes, in minimum denominations of less than $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the 2,000 aggregate principal amount at maturity of the Notes held by any holder to below $200,000remains outstanding thereafter. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an will deliver notice of such Asset Disposition Offer electronically or by first-class mail as provided for in Section 5.3 of this Indenture, with respect to such Net Available Cash prior a copy to the time period Trustee, to each Holder of Notes at the address of such Holder appearing in the security register, describing the transaction or transactions that may 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 with respect to all or a part of the available Net Available Cash (the “Advance Portion”) and described in advance of being required to do so by this Indenture (an “Advance Offer”)such notice.
(e) [Reserved].
(fb) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Issuer and the or any Restricted Subsidiaries Subsidiary may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent any purpose not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis (subject to adjustments to maintain the authorized Notes denomination requirements) on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any ; provided that no Notes or other Pari Passu Indebtedness in an unauthorized denomination will remain outstanding after such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)purchase. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(gc) 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 in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in U.S. dollars that is actually received by the IssuerIssuer upon converting such portion into U.S. dollars.
(hd) The Notwithstanding any other provisions of this covenant, (i) to the extent that any of or all the Net Available Cash of any Asset Disposition Offerby a Foreign Subsidiary (a “Foreign Disposition”) is (x) prohibited or delayed by applicable local law, in so far as it relates (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous organizational or administrative impediments from being repatriated to the NotesUnited States, the portion of such Net Available Cash so affected will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time be required to comply be applied in compliance with Section 14(e) of this covenant, and such amounts may be retained by the Exchange Act and any other applicable securities laws or regulations in connection with Foreign Subsidiary so long, but only so long, as the Asset Disposition Offer applicable local law will not permit repatriation to the United States (the “Asset Disposition Offer Period”Issuer hereby agreeing to use reasonable efforts (as determined in the Issuer’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). No , 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 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 termination extent that the Issuer 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 cost consequence with respect to such Net Available Cash (which for the avoidance of doubt, includes, but is not limited to, any prepayment whereby doing so the Issuer, any Restricted Subsidiary or any of their 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), 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 Issuer or a Restricted Subsidiary (other than Subordinated Indebtedness of the Issuer or a Guarantor) and the release of the Issuer or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition Offer Period Disposition;
(2) securities, notes or other obligations received by the “Issuer or any Restricted Subsidiary of the Issuer from the transferee that are converted by the Issuer or such Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Disposition Purchase Date”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 Issuer 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 Issuer (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Issuer or any Restricted Subsidiary; and
(5) any Designated Non-Cash Consideration received by the Issuer 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) $50.0 million and (ii) 2.50% of Total Assets (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) The Issuer will comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and regulations thereunder to the extent such laws or regulations are applicable 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 the provisions of this Indenture, the Issuer will purchase comply with the principal amount of Notes and, applicable securities laws and regulations and shall not be deemed to the extent it elects, Pari Passu Indebtedness required to be purchased have breached its obligations described in this Indenture by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess virtue thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 1 contract
Sources: Indenture (Igate Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the IssuerCompany, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap)) with a purchase price in excess of $50.0 million, other than in a sale of the Budget Truck Division for fair market value, at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis basis), received by the Issuer Company or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After an amount equal to 100% of the receipt of Net Available Cash from an such Asset Disposition, Disposition is applied:
(A) to the Issuer extent the Company or a any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects (or indirectly is required by the terms of any Indebtedness), (at i) to prepay, repay or purchase any Indebtedness of a Non-Guarantor, any Indebtedness that is secured by a Lien (in each case, other than Indebtedness owed to the option of the Issuer Company or such any Restricted Subsidiary):
) or Indebtedness under the Credit Agreement (1or any Refinancing Indebtedness in respect thereof) within 365 450 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (i), the Issuer Company or such Restricted Subsidiary will shall retire such Indebtedness and will shall cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, repaid or purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, repay or purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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 prepaymentinterest, repaymentif any, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, the date of purchase (subject such prepayment, repayment or purchase; provided further that, to the right of Holders of record on extent the relevant record date to receive interest due on the relevant interest payment date) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase Company or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor redeems, repays or any repurchases Pari Passu Indebtedness that is secured on assets pursuant to this clause (other than Subordinated Indebtedness of ii), the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase Company 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 a price equal 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 or higher than all Holders to purchase their Notes at 100% of the principal amount thereof, or make an offer to all holders of plus the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notesaccrued but unpaid interest, plus accrued and unpaid interest toif any, but not including, 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) or (v) to redeem the amount of Notes as described under Section 3.07;that would otherwise be prepaid; and/or
(2B) to the extent the Issuer Company or such any Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with equal to the amount of Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 450 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or shall be treated as a permitted application of Net Available Cash from the date of such commitment approved by with the Board of Directors of the Issuer good faith expectation that is executed or approved within an amount equal to Net Available Cash will be applied to satisfy such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cashcommitment; providedprovided that, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of the amount of any such Net Available Cash in accordance with clauses clause (1), (2), (3A) or (4B) of Section 4.08(c3.5(a)(3), the Issuer Company and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest use 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 Section 3.5(a)(3)(B) with respect to such Asset Disposition.
(db) Any The amount of any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) the preceding paragraph will be deemed to constitute “Excess Proceeds.” under this Indenture. On the 366th 451st day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such an Asset Disposition and (B) or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds under this Indenture exceeds (i) $100 100.0 million, in the Issuer will case of a single transaction or a series of related transactions, or (ii) $200.0 million aggregate amount in any fiscal year, the Company shall within 10 Business Days be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders Holders of the Notes issued under this Indenture and, to the extent the Issuer or a Guarantor Company elects, or the Issuer or a Guarantor is required by the terms to all holders of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of and, with respect to the Notes, in minimum denominations of $200,000 2,000 and in integral multiples of $1,000 in excess thereof. No The Company shall deliver notice of such purchase 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 part shall reduce the principal amount at maturity of the Notes held 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 any holder to below $200,000this Indenture and described in such notice. The Issuer Company may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such all Net Available Cash prior to the time expiration of the relevant 450 days (or such longer period that may be required by this Indenture provided above) or with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”)any unapplied Excess Proceeds.
(e) [Reserved].
(fc) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Issuer and the Restricted Subsidiaries Company may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent any purpose not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated provided that no Notes or other Pari Passu Indebtedness will be selected and purchased in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)an unauthorized denomination. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Additionally, and in the case Company may, at its option, make an Asset Disposition Offer using proceeds from any Asset Disposition at any time after the consummation of an Advance such Asset Disposition. Upon consummation or expiration of any Asset Disposition Offer, the amount of any remaining Net Available Cash shall not be deemed Excess Proceeds and the Issuer is offering to apply in Company may use such Advance Offer shall be excluded in subsequent calculations of Excess ProceedsNet Available Cash for any purpose not prohibited by this Indenture.
(gd) 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 in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in U.S. dollars that is actually received by the IssuerCompany upon converting such portion into U.S. dollars.
(he) The Notwithstanding any other provisions of Section 3.5, (i) to the extent that any of or all the Net Available Cash of any Asset Disposition Offerby a Foreign Subsidiary (a “Foreign Disposition”) is (x) prohibited or delayed by applicable local law, in so far as it relates (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous organizational or administrative impediments from being repatriated to the NotesUnited States, the portion of such Net Available Cash so affected will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time be required to comply be applied in compliance with Section 14(e) of this covenant, and such amounts may be retained by the Exchange Act and any other applicable securities laws Foreign Subsidiary so long, but only so long, as the applicable local law, documents or regulations in connection with agreements will not permit repatriation to the Asset Disposition Offer United States (the “Asset Disposition Offer Period”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 180 days following the date on which the respective payment would otherwise have been required, promptly take all commercially reasonable actions with respect to the applicable local law, applicable organizational impediments or other impediment to permit such repatriation). No , and if within 180 days 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 (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 termination extent that the Company has determined in good faith that repatriation of any of or all the Asset Net Available Cash of any Foreign Disposition Offer Period would have an adverse Tax consequence (which for the “Asset Disposition Purchase Date”avoidance of doubt, includes, but is not limited to, any prepayment whereby doing so the Company, any Restricted Subsidiary, or any of their respective affiliates and/or equity owners would incur a tax liability, including a tax dividend, deemed dividend pursuant to Code Section 956 or a withholding tax), the Issuer 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 purchase not, for the principal amount avoidance of Notes anddoubt, constitute a Default or an Event of Default.
(f) For the purposes of Section 3.5(a)(2), 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 Subordinated Indebtedness of the Company or a Subsidiary 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;
(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 it electsthat 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 or any Restricted Subsidiary 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, Pari Passu Indebtedness required to be purchased by it taken together with all other Designated Non-Cash Consideration received pursuant to this Section 4.08 3.5 that is at that time outstanding, not to exceed the greater of $300.0 million and 1.75% of Total Assets (with the “Asset Disposition Offer Amount”) or, if less than fair market value of each item of Designated Non-Cash Consideration being measured at the Asset Disposition Offer Amount has been so validly tendered, all Notes time received and Pari Passu Indebtedness validly tendered without giving effect to subsequent changes in response to the Asset Disposition Offervalue).
(ig) On or before the Asset Disposition Purchase Date, the Issuer willThe Company shall comply, to the extent lawfulapplicable, accept for paymentwith the requirements of Rule 14e-1 under the Exchange Act and any other securities laws, on a pro rata basis rules and regulations thereunder to the extent necessarysuch laws or regulations are applicable 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 the provisions of this Indenture, the Company shall comply with the applicable securities laws, rules and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof. 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 Offer Amount of Notes and Pari Passu Indebtedness may be waived or portions of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to modified with the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case written consent of the Holders of a majority in principal amount of the then outstanding Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 1 contract
Sources: Indenture (Avis Budget Group, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 7575.0% of the consideration from such Asset Disposition or such series of related Disposition, together with all other Asset Dispositions since the Escrow Release Date (excluding any consideration on a cumulative basis) (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After an amount equal to 100.0% of the receipt of Net Available Cash from an such Asset Disposition, Disposition is applied:
(i) to the extent the Issuer or a any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects (or indirectly is required by the terms of any Indebtedness), (at the option A) to prepay, repay or purchase any Indebtedness of a Non-Guarantor (in each case, other than Indebtedness owed to the Issuer or such any Restricted Subsidiary):
) or any Secured Indebtedness; including Indebtedness under the Credit Agreements (1or any Refinancing Indebtedness in respect thereof) within 365 450 days from the later of (Aa) the date of such Asset Disposition and (Bb) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; or (iiB) unless included in Section 4.08(c)(1)(B)(i), to prepay, repayrepay or purchase Pari Passu Indebtedness; provided further that, purchase to the extent the Issuer redeems, repays or redeem any repurchases Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if B), the Issuer or such Guarantor purchases shall equally and ratably reduce Obligations under the Notes as provided under Section 5.7, through open-market purchases 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 a price equal to or higher than 100100.0% of the principal amount thereof, or makes an offer to plus the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notesaccrued but unpaid interest, plus accrued and unpaid interest toif any, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtednesswould otherwise be prepaid; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;and
(2ii) to the extent the Issuer or such any Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with equal to the amount of Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 450 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or shall be treated as a permitted application of Net Available Cash from the date of such commitment approved by with the Board of Directors of the Issuer good faith expectation that is executed or approved within an amount equal to Net Available Cash will be applied to satisfy such time will satisfy this requirement, so long as such investment is consummated commitment within 180 days of such 365th daycommitment (an “Acceptable Commitment”) and, in the event of any Acceptable Commitment is later cancelled or terminated for any reason before such amount is applied in connection therewith, the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; or
(4) provided further that if any combination of clauses (1) through (3) of Section 4.08(c)Second Commitment is later cancelled or terminated for any reason before such amount is applied, then such Net Available Cash shall constitute Excess Proceeds; provided that, pending the final application of the amount of any such Net Available Cash in accordance with clauses clause (1), (2), (3i) or (4ii) of Section 4.08(c)above, the Issuer and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest use such Net Available Cash in any manner not prohibited by this Indenture.
(db) Any The amount of any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) the preceding paragraph will be deemed to constitute “Excess Proceeds.” under this Indenture. On the 366th 451st day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such an Asset Disposition and (B) or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds under this Indenture exceeds $100 100.0 million, the Issuer will within 10 Business Days be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders Holders of the Notes issued under this Indenture and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms to all holders of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100100.0% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of and, with respect to the Notes, in minimum denominations of $200,000 2,000 and in integral multiples of $1,000 in excess thereof. No The Issuer will deliver notice of such purchase Asset Disposition Offer electronically or by first-class mail, with a copy to the Trustee, the Paying Agent and each Holder of Notes at the address of such Holder appearing in part shall reduce the principal amount at maturity security register or otherwise in accordance with the applicable procedures of DTC, describing the transaction or transactions that constitute the Asset Disposition and offering to repurchase the Notes held 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 any holder to below $200,000this Indenture and described in such notice. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such all Net Available Cash prior to the time expiration of the relevant 450 days (or such longer period that may be required by this Indenture provided above) or with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”)any unapplied Excess Proceeds.
(e) [Reserved].
(fc) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent any purpose not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), Issuer shall allocate the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such ; provided that no Notes or other Pari Passu Indebtedness not denominated will be selected and purchased in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)an unauthorized denomination. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Additionally, and in the case Issuer may, at its option, make an Asset Disposition Offer using proceeds from any Asset Disposition at any time after the consummation of an Advance such Asset Disposition. Upon consummation or expiration of any Asset Disposition Offer, the amount of any remaining Net Available Cash shall not be deemed Excess Proceeds and the Issuer is offering to apply in may use such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) Net Available Cash for any purpose not prohibited by this Indenture. 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 in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in U.S. dollars that is actually received by the IssuerIssuer upon converting such portion into U.S. dollars.
(hd) The 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 Offerby a Foreign Subsidiary (a “Foreign Disposition”) is (x) prohibited or delayed by applicable local law, in so far as it relates (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous organizational or administrative impediments from being repatriated to the NotesUnited States, the portion of such Net Available Cash so affected will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time be required to comply be applied in compliance with Section 14(e) of this covenant, and such amounts may be retained by the Exchange Act and any other applicable securities laws Foreign Subsidiary so long, but only so long, as the applicable local law documents or regulations in connection with agreements will not permit repatriation to the Asset Disposition Offer United States (the “Asset Disposition Offer Period”Issuer hereby agreeing to use reasonable efforts (as determined in the Issuer’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). No , 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 (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 Section 3.5; and
(ii) to the termination extent that the Issuer 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 whereby doing so the Issuer, any Restricted Subsidiary, 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 Issuer or a Restricted Subsidiary (other than Subordinated Indebtedness of the Issuer, a Co-Issuer or a Guarantor) and the release of the Issuer or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition Offer Period Disposition;
(2) securities, notes or other obligations received by the “Issuer or any Restricted Subsidiary from the transferee that are converted by the Issuer or such Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Disposition Purchase Date”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 Issuer 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 Issuer (other than Subordinated Indebtedness) received after the Escrow Release Date from Persons who are not the Issuer or any Restricted Subsidiary; and
(5) any Designated Non-Cash Consideration received by the Issuer 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 $125.0 million and 4.0% of Total Assets (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 Issuer will purchase comply with the principal amount of Notes andapplicable securities laws, rules and regulations and shall not be deemed to the extent it elects, Pari Passu Indebtedness required to be purchased have breached its obligations described in this Indenture by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess virtue thereof.
(jg) The Issuer will deliver provisions of this Indenture relative to the Trustee Issuer’s obligation to make an Officer’s Certificate stating that such offer to repurchase the Notes as a result of an Asset Disposition may be waived or portions thereof were accepted for payment by the Issuer in accordance modified with the terms written consent of this Section 4the Holders of a majority in aggregate principal amount of the outstanding Notes.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the Issuer, ) of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap)) if the property or assets sold or otherwise disposed of have a fair market value in excess of $30.0 million, at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents;
(c3) After the receipt Issuer or any of its Restricted Subsidiaries, at its respective option, will apply an amount equal to such Net Available Cash from an any Asset Disposition:
(i) (A) to prepay, repay, redeem 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 Issuer or a any Restricted Subsidiary, as ) or Indebtedness under the case may be, may apply such Net Available Cash directly Credit Agreement (or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1any Refinancing Indebtedness in respect thereof) within 365 540 days from the later of (A1) the date of such Asset Disposition and (B2) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repayment repayment, redemption or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased redeemed or redeemedpurchased; or (iiB) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, redeem or purchase or redeem any Pari Passu Indebtedness of Indebtedness; provided further that, to the extent the Issuer or any GuarantorRestricted Subsidiary prepays, repays, redeems or purchases Pari Passu Indebtedness pursuant to this clause (B), the Issuer 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 a price of no more than or above 100% of the principal amount of such Pari Passu Indebtedness plus accrued and unpaid interest thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to the date of such prepayment, repayment, all Holders to purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases their Notes at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to plus the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notesaccrued but unpaid interest, plus accrued and unpaid interest if any, on the amount of Notes that would otherwise be purchased to, but not includingexcluding, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtednesspurchase; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;and/or
(2ii) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 540 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or shall be treated as a permitted application of Net Available Cash from the date of such commitment approved by with the Board of Directors of the Issuer good faith expectation that is executed or approved within such time Net Available Cash will be applied to satisfy this requirement, so long as such investment is consummated commitment within 180 days of such 365th daycommitment (an “Acceptable Commitment”) and, in the event that any Acceptable Commitment is later cancelled or terminated for any reason before the Net Available Cash is applied in connection therewith, the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; or
(4) provided further that if any combination of clauses (1) through (3) of Section 4.08(c)Second Commitment is later cancelled or terminated for any reason before such Net Available Cash is applied, then such Net Available Cash shall constitute Excess Proceeds; provided that, pending the final application of any such Net Available Cash in accordance with clauses clause (1), (2), (3i) or clause (4ii) of in Section 4.08(c3.5(a)(3), the Issuer and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest use such Net Available Cash in any manner not prohibited by this Indenture.:
(db) Any If an amount equal to the Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided provided, and within the time period (including as extended) set forth in Section 4.08(c3.5(a) (it being understood that any portion of such amount used to make an offer to purchase Notes, as described in Section 3.5(a)(3)(i)(B), will be deemed to have been applied whether or not such offer is accepted), then such amount not applied or invested or committed to be applied or invested will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if under this Indenture. When the aggregate amount of Excess Proceeds under this Indenture exceeds $100 million35.0 million in any fiscal year, the Issuer will be required within ten (10) 10 Business Days thereof to make an offer (an “Asset Disposition Offer”) to all holders Holders of the Notes and, to the extent the Issuer elects or a Guarantor elects, or the Issuer or a Guarantor is required to by the terms of any Pari Passu Indebtedness, to holders or lenders of any other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum aggregate principal amount of such the Notes and any such Pari Passu Indebtedness to which the such Asset Disposition Offer applies that is an integral multiple of $1,000 that may be purchased out of the Excess Proceeds, Proceeds at an offer price in respect of the Notes cash in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and such Pari Passu Indebtedness, or 100% of the principal amount accreted value thereof, if less (or, in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Pari Passu Indebtedness), in each case, plus accrued and unpaid interest, if any, to, but not includingexcluding, the date fixed for the closing of purchasesuch offer, in accordance with the procedures set forth in this Indenture or the agreements governing the such Pari Passu Indebtedness, as applicable; provided that no Note of less than $2,000 remains outstanding thereafter. The Issuer will deliver notice of such Asset Disposition Offer electronically or by first-class mail as provided under Section 3.5(g) with a copy to the Trustee, and to each Holder of Notes at the address of such Holder appearing in the case Notes Register (or while Notes are in the form of the Global Notes, in minimum denominations of $200,000 accordance with the Applicable Procedures), describing the transaction or transactions that constitute the Asset Disposition and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of offering to repurchase the Notes held by any holder to below $200,000. The Issuer may satisfy for the foregoing obligations with respect to any Net Available Cash 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 an Asset Disposition by making an Asset Disposition Offer with respect to the date such Net Available Cash prior notice is delivered, pursuant to the time period that may be procedures required by this Indenture Indenture, or otherwise in accordance with respect to all or a part the procedures of the available Net Available Cash (the “Advance Portion”) DTC, and described in advance of being required to do so by this Indenture (an “Advance Offer”)such notice.
(e) [Reserved].
(fc) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Issuer and the or any Restricted Subsidiaries Subsidiary may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent any purpose not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any Indebtedness provided that no Notes or other Pari Passu Indebtedness in an unauthorized denomination will remain outstanding after such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)purchase. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case zero (regardless of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in whether there are any remaining Excess Proceeds upon such Advance Offer shall be excluded in subsequent calculations of Excess Proceedscompletion).
(gd) To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than dollarsDollars, the amount thereof payable in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in Dollars that is actually received by the IssuerIssuer upon converting such portion into Dollars.
(he) Notwithstanding any other provisions of this Section 3.5, (i) to the extent that any or all of 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 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, organizational document, agreement or other impediment will not permit repatriation to the Issuer or a Guarantor (the Issuer hereby agreeing to use commercially reasonable efforts (as determined in the Issuer’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, the applicable organizational document or agreement or the other applicable impediment to permit such repatriation to the Issuer or a Guarantor), 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, the applicable organizational document or agreement or the applicable other impediment, an amount equal to such amount of Net Available Cash so permitted to be repatriated will be promptly (and in any event not later than 10 Business Days after such repatriation is permitted) applied (net of any Taxes, costs or expenses that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) in compliance with this Section 3.5 and (ii) to the extent that the Issuer has determined in good faith that repatriation of any or all of the Net Available Cash of any Foreign Disposition could 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 doing so Holdings, the Issuer, any Restricted Subsidiary or any of their 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), 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. For the avoidance of doubt, so long as an amount equal to the amount of Net Available Cash required to be applied in accordance with this Section 3.5 is applied by the Issuer, nothing in this Indenture shall be construed to require any Subsidiary to repatriate cash.
(f) For purposes of Section 3.5(a)(2), the following will be deemed to be cash:
(i) the (x) assumption or (y) cancellation, extinguishment or termination of Indebtedness or other liabilities (as reflected on the Issuer’s or such Restricted Subsidiary’s most recent consolidated balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Issuer’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Issuer) contingent or otherwise, in each case of the Issuer or a Restricted Subsidiary (other than Subordinated Indebtedness of the Issuer or a Guarantor) and, in the case of clause (x) only, the release of the Issuer or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition;
(ii) securities, notes or other obligations received by the Issuer or any Restricted Subsidiary from the transferee that are converted by the Issuer or such Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Disposition;
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Issuer and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition;
(iv) consideration consisting of Indebtedness of the Issuer or a Guarantor (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Issuer or any Restricted Subsidiary; and
(v) any Designated Non-Cash Consideration received by the Issuer 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 $35.0 million and 13.9% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) (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).
(g) Upon the commencement of an Asset Disposition Offer, in so far as it relates the Issuer shall send, or cause to be sent, electronically or by first class mail, a notice to the Trustee and to each Holder at its registered address (or while Notes are in the form of Global Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection accordance with the Asset Disposition Offer (the “Asset Disposition Offer Period”Applicable Procedures). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before . Any Asset Disposition Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Disposition Purchase DateOffer, shall state:
(1) that the Issuer willAsset Disposition Offer is being made pursuant to this Section 3.5 and that, to the extent lawful, accept all Notes tendered and not withdrawn shall be accepted for payment (unless prorated);
(2) the Asset Disposition payment amount, the Asset Disposition offered price, and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and not later than 60 days from the date such notice is mailed (the “Asset Sale Payment Date”);
(3) that any Notes not tendered or accepted for payment shall continue to accrue interest in accordance with the terms thereof;
(4) that, unless the Issuer defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrue interest on and after the Asset Sale Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to any Asset Disposition Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent at the address specified in the notice at least three (3) Business Days before the Asset Sale Payment Date;
(6) that Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than two (2) Business Days prior to the Asset Sale Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Note purchased;
(7) that if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition payment amount, the Issuer shall select the Notes to be purchased on a pro rata basis to (with such adjustments as may be deemed appropriate by the extent necessary, the Asset Disposition Offer Amount of Issuer so that only Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of at least $200,000 and in 2,000 or integral multiples of $1,000 in excess thereof.remain outstanding after purchase); and
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating 8) that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.Holders
Appears in 1 contract
Sources: Indenture (Blue Coat, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1i) the Issuer 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 (such fair market value to be determined on as of the date of contractually agreeing to on which a legally binding commitment for such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the Issuer, Disposition was entered into) of the shares and assets subject to such Asset Disposition, as such fair market value shall be determined (including as to the value of all noncash consideration) in good faith by the Company, which determination shall be conclusive,
(ii) in the case of any Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and
(2) in any such Asset Disposition, or series of related Asset Dispositions Dispositions) having a Fair Market Value (except to as of the extent the date on which a legally binding commitment for such Asset Disposition is a Permitted Asset Swap)was entered into) in excess of the greater of $135.0 million and 10.0% of LTM Consolidated EBITDA, at least 7575.0% of the consideration from such therefor (excluding, in the case of an Asset Disposition (or such series of related Asset Dispositions (excluding Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than that are not Indebtedness)) for such Asset Disposition, together with all other Asset Dispositions since the Issue Date (except on a cumulative basis), received by the Company or such Restricted Subsidiary is in the form of cash, and
(iii) an amount equal to 100.0% of the extent any Net Available Cash from such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received is applied by the Issuer Company (or such any Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.) as follows:
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and first, either (B) the receipt of such Net Available Cash (ix) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer extent the Company or such Restricted Subsidiary will retire such Indebtedness and will cause elects (or is required by the related commitment (if any) (except in the case terms of any revolving Credit Facility Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Senior Indebtedness of the Issuer Company or any Guarantor, 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, purchase Subsidiary Guarantor or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness that is secured on assets or Obligations in respect thereof or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness or Obligations in respect thereof (in each case other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer Company or any a Restricted Subsidiary); (iv) to purchase within 18 months after the Notes through open-market purchases at a price equal to or higher than 100% later of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, the date of purchase such Asset Disposition and the date of receipt of such Net Available Cash (subject to or if later, 6 months following the right date on which a reinvestment commitment or letter of Holders intent is entered into (so long as such reinvestment commitment or letter of record on the relevant record date to receive interest due on the relevant interest payment dateintent was entered into during such 18-month period) or (v) to redeem the Notes as described under Section 3.07;
(2y) to the extent the Issuer Company or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 days 18 months from the later of (i) the date of such Asset Disposition and (ii) the date of receipt of such Net Available CashCash (or if later, 6 months following the date on which a reinvestment commitment or letter of intent is entered into (so long as such reinvestment commitment or letter of intent was entered into during such 18-month period), or, if such investment in Additional Assets is a project authorized by the Board of Directors that shall take longer than such 18 months to complete, the period of time necessary to complete such project;
(B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above (such balance, the “Excess Proceeds”), to make an offer to purchase Notes and (to the extent the Company or such Restricted Subsidiary elects, or is required by the terms thereof) to purchase, redeem or repay any other Senior Indebtedness of the Company or a Restricted Subsidiary, pursuant and subject to the conditions of this Indenture 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 (the amount of such balance, “Declined Excess Proceeds”), to fund (to the extent consistent with any other applicable provision of this Indenture) any general corporate purpose (including the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations or the making of other Restricted Payments); provided, however, that (1) in connection with any such reinvestment in Additional Assets made prepayment, repayment or purchase of Indebtedness pursuant to a definitive binding agreement Section 408(iii)(A)(x) or a Section 408(iii)(B) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment approved by (if any) to be permanently reduced in an amount equal to the Board principal amount so prepaid, repaid or purchased; (2) clause (ii) above shall not apply to any sale, lease, transfer or other disposition of Directors Capital Stock, Indebtedness or other securities of, or any other Investments in, or the business or assets of, any Person that is not organized under the laws of the Issuer that is executed United States of America or approved within such time will satisfy this requirementany state thereof or the District of Columbia, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) the foregoing percentage in clause (iii) shall be reduced to make (x) 50.0% if, on a capital expenditure within 365 days from the later of (A) the date of pro forma basis after giving effect to such Asset Disposition and the use of proceeds therefrom, the Consolidated Total Corporate Leverage Ratio would be equal to or less than 4.00:1.00 and (y) 0% if, on a pro forma basis after giving effect to such Asset Disposition and the use of proceeds therefrom, the Consolidated Total Corporate Leverage Ratio would be equal to or less than 3.00:1.00; (any Net Available Cash in respect of Asset Dispositions not required to be applied in accordance with clause (iii) as a result of the application of one or more stepdowns in this clause (3) of this proviso shall collectively constitute “Total Leverage Excess Proceeds”) and (4) the Company or such Restricted Subsidiary 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 Section 408(iii)(A)(y) above with respect to such Asset Disposition.
(b) Notwithstanding the foregoing provisions of this Section 408, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 408 except to the extent that the aggregate Net Available Cash from all Asset Dispositions or equivalent amount that is not applied in accordance with this Section 408 (excluding all Total Leverage Excess Proceeds) exceeds (x) the greater of $165.0 million and 12.5% of LTM Consolidated EBITDA, individually, and (y) the greater of $330.0 million and 25.0% of LTM Consolidated EBITDA, in the aggregate on an annual basis. If the aggregate principal amount of any series of the Notes and/or other Indebtedness of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to clause (B) above exceeds the receipt Excess Proceeds, the Excess Proceeds shall be apportioned between such series of Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such series of Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding principal amount of such series of Notes and the denominator of which is the sum of the outstanding principal amount of such series of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes of such series validly tendered and not withdrawn.
(c) Notwithstanding the foregoing provisions of this Section 408, to the extent that repatriating or transferring to the United States any or all of the Net Available Cash from any Asset Disposition by a Foreign Subsidiary (w) could reasonably be expected to result in material adverse tax consequences to the Company or any of its Subsidiaries, (x) is prohibited or delayed by applicable local law, (y) could reasonably be expected to give rise to or result in (A) any violation of applicable law, (B) any liability (criminal, civil, administrative or other) for any of the officers, directors or shareholders of the Company, any Restricted Subsidiary or any Parent, (C) any violation of the provisions of any joint venture or other material agreement governing or binding upon the Company or any Restricted Subsidiary or (D) any material risk of any such violation or liability referred to in clauses (A), (B) and (C) or (z) could reasonably be expected to give rise to or result in any cost, expense, liability or obligation (including any tax) other than routine and immaterial out-of-pocket expenses (in the case of the foregoing clauses (w), (x), (y) and (z), as determined by the Company in good faith, which determination shall be conclusive), the portion of such Net Available Cash; providedCash so affected will not be required to be applied in compliance with the foregoing provisions of this Section 408, however, that any and such capital expenditure made pursuant to a definitive binding agreement or a commitment approved amounts may be retained by the Board of Directors of the Issuer that is executed applicable Foreign Subsidiary or approved within such time will satisfy this requirementinvested in, so long as such investment is consummated within 180 days of such 365th daydistributed to or otherwise transferred to any other Foreign Subsidiary; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending in the final application case of the foregoing clause (y), the Company shall take commercially reasonable efforts to cause the applicable Foreign Subsidiary to take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation or transfer, and if such repatriation or transfer of any of such affected Net Available Cash in accordance with clauses (1), (2), (3) can be achieved such repatriation or (4) of Section 4.08(c), the Issuer transfer shall be promptly effected and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such repatriated Net Available Cash shall be applied (whether or not repatriation or transfer actually occurs) in any manner compliance with the foregoing provisions of this Section 408. The time periods set forth in this Section 408 shall not prohibited by this Indenturestart until such time as the Net Available Cash may be repatriated or transferred whether or not such repatriation or transfer actually occurs.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed For the purposes of clause (ii) of paragraph (a) above, the following are deemed to be applied or invested as provided in Section 4.08(ccash: (1) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th dayTemporary Cash Investments, in the case of any Net Available Investment Grade Securities and Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause Equivalents, (2) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (3) Indebtedness of Section 4.08(c)) after the later of (A) the date any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes andDisposition, to the extent that the Issuer or a Guarantor elects, or Company and each other Restricted Subsidiary are released from any Guarantee of payment of the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes Indebtedness in connection with such Asset Disposition, (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days, (5) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary, (6) Additional Assets and (7) any such Pari Passu Indebtedness to which Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition Offer applies that may be purchased out having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause, not to exceed an aggregate amount at any time outstanding equal to the greater of $330.0 million and 25.0% of LTM Consolidated EBITDA (with the Fair Market Value of each item of Designated Noncash Consideration being measured as of the Excess Proceedsdate on which a legally binding commitment for such Asset Disposition (or, at if later, for the payment of such item) was entered into and without giving effect to subsequent changes in value).
(e) In the event of an Asset Disposition that requires the purchase of Notes pursuant to Section 408(a)(iii)(B) above, the Company shall be required to purchase Notes tendered pursuant to an offer by the Company for the Notes (the “Offer”) at a purchase price of 100% of their principal amount plus accrued and unpaid interest to the date of purchase in respect accordance with the procedures (including prorating in the event of 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 shall be available to the Company and the Restricted Subsidiaries for use in accordance with Section 408(a)(iii)(B) above (to repay other Indebtedness of the Company or a Restricted Subsidiary) or Section 408(a)(iii)(C) above. The Company shall not be required to make an Offer for Notes pursuant to this Section 408 if the Net Available Cash (excluding all Total Leverage Excess Proceeds) available therefor (after application of the proceeds as provided Section 408(a)(iii)(A) above) is less than (i) $150.0 million for any particular Asset Disposition or (ii) $300.0 million in the aggregate in any fiscal year. No Note shall be repurchased in part if less than the Minimum Denomination in original principal amount of such Note would be left outstanding.
(f) The Company shall, not later than 45 days after the Company becomes obligated to make an Offer pursuant to this Section 408, mail a notice to each Holder with a copy to the Trustee 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 a portion of such Holder’s Notes at a purchase price in cash equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each casethereof, plus accrued and unpaid interest, if any, to, to but not including, including the date of purchasepurchase (subject to the right of Holders of record on a record date to receive interest on the relevant Interest Payment Date falling prior to or on the purchase date pursuant to Section 307); (2) the repurchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed, except that such notice may be delivered more than 60 days prior to the purchase date if the purchase is delayed as provided in accordance clause (5) of this Section 408(f)); (3) the instructions determined by the Company, consistent with this Section 408, that a Holder must follow in order to have its Notes purchased; (4) the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case amount of the NotesOffer, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce which amount may be contingent upon the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an remaining following the application of Net Available Cash pursuant to Section 408(a)(iii)(A) and (5) if such notice is sent prior to the date the Net Available Cash attributable to such Asset Disposition by making an Asset Disposition Offer with respect to is received, that such offer is conditioned upon receipt of such Net Available Cash prior to and that the repurchase date may, in the Company’s discretion, be delayed until such time period that may be required by this Indenture with respect to all or a part of as the available Net Available Cash (is received. If, upon the “Advance Portion”) in advance expiration of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that period for which the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (orremains open, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) Company shall be allocated among select the Notes and Pari Passu Indebtedness 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 the aggregate principal amount $2,000 or integral multiples of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated $1,000 in dollars, such Indebtedness excess thereof shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined belowpurchased). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) To An Offer may be made at the extent that any portion same time as consents are solicited with respect to an amendment, supplement or waiver of Net Available Cash payable in respect of this Indenture, the Notes is denominated in a currency other than dollars, and/or Guarantees (but the amount thereof payable in respect Offer may not condition tenders on the delivery of the Notes shall not exceed the net Dollar Equivalent of the amount that is actually received by the Issuersuch consents).
(h) The Asset Disposition OfferCompany shall comply, in so far as it relates to the Notesextent applicable, will remain open for a period with the requirements of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.repurchase of
Appears in 1 contract
Sources: Indenture (Hertz Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
unless (1i) the Issuer 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 sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition Disposition, (including, for ii) at least 80% of the avoidance consideration thereof received by the Company or such Restricted Subsidiary is in the form of doubt, if cash and (iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is a Permitted Asset Swap); and
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received applied by the Issuer Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any Senior Indebtedness or Indebtedness of a Wholly owned Subsidiary), to prepay, repay or purchase such Indebtedness of a Wholly Owned Subsidiary (in each case other than Indebtedness owed to the form of cash, Cash Equivalents Company or Temporary Cash Investments.
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option Affiliate of the Issuer or such Restricted Subsidiary):
(1Company) within 365 days from 6 months after the later of (A) the date of such Asset Disposition and (B) or the receipt of such Net Available Cash; (B) second, to the extent of the balance of Net Available Cash after application in accordance with clause (iA), to the extent the Company or such Restricted Subsidiary elects, to reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary) within 6 months from the later of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to prepaythe extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), repayto repay the Loan, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i)clause (A) or (C) above, the Issuer Company or such Restricted Subsidiary will shall retire such Indebtedness and will shall cause the related loan commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness purchased. Notwithstanding the foregoing provisions of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not includingSection, the date of purchase (subject Company and the Restricted Subsidiaries shall not be required to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem apply any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of this Section 4.08(c), except to the Issuer and extent that the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any aggregate Net Available Cash from all Asset Dispositions that is which are not applied or invested or committed in accordance with this Section exceed $500,000. For the purposes of this Section, the following are deemed to be applied or invested as provided in Section 4.08(ccash: (x) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case assumption of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors Indebtedness of the Issuer pursuant to clause Company (2other than Disqualified Stock of the Company) or (3) any Restricted Subsidiary and the release of Section 4.08(c)) after the later of (A) the date of Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (By) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually securities received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to Company or any Restricted Subsidiary from the Notes, will remain open for a period of not less than 20 Business Days following its commencement transferee that are promptly converted by the Company or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition OfferRestricted Subsidiary into cash.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Parent Guarantor shall not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1i) the Issuer Parent Guarantor 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 an Officer or the Board of Directors of the IssuerParent Guarantor, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2ii) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Parent Guarantor or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(ciii) After an amount equal to 100% of the receipt of Net Available Cash from an such Asset Disposition, the Issuer Disposition is applied by Parent Guarantor or a any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary)::
(1A) to the extent the Parent Guarantor or any Restricted Subsidiary elects (or is required by the terms of any Indebtedness) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash Cash, (ix) to prepay, repay, repay or purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) of a Non-Guarantor, Indebtedness that is secured by a Lien or Permitted Funding Indebtedness (in each case, other than Indebtedness owed to the Parent Guarantor or any Guarantor IndebtednessRestricted Subsidiary); provided, however, provided that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (1), the Issuer Parent Guarantor or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; or (iiy) unless included in Section 4.08(c)(1)(B)(i), to prepay, repayrepay or purchase Pari Passu Indebtedness; provided that, purchase to the extent the Company redeems, repays or redeem any repurchases Pari Passu Indebtedness pursuant to this clause (y), the Company shall equally and ratably reduce obligations under the Notes pursuant to Article 3 herein and Paragraph 5 of the Issuer Notes, through open-market purchases (to the extent such purchases are at or any Guarantor, at a price of no more than above 100% of the principal amount of such Pari Passu Indebtedness plus accrued and unpaid interest thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to the date of such prepayment, repayment, all Holders to purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases their Notes at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to plus the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notesaccrued but unpaid interest, plus accrued and unpaid interest toif any, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtednesswould otherwise be prepaid; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;or
(2B) to the extent the Issuer Parent Guarantor or such any Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including Financeable Assets and by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer Parent Guarantor or another Restricted Subsidiary) within 365 days from the later of (ix) the date of such Asset Disposition and (iiy) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer Parent Guarantor that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses clause (1), ) or clause (2), (3) or (4) of Section 4.08(c)above, the Issuer Parent Guarantor and the its Restricted Subsidiaries may temporarily reduce Indebtedness (including Permitted Funding Indebtedness) or otherwise invest use such Net Available Cash in any manner not prohibited by this Indenture.
(db) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) the preceding paragraph will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if under this Indenture. When the aggregate amount of Excess Proceeds under this Indenture exceeds the greater of (i) $100 million25.0 million and (ii) 2.0% of Consolidated Total Assets, the Issuer will Company shall within 10 Business Days be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders Holders of the Notes issued under this Indenture and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of any other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness Indebtedness, to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(fc) To the extent that the aggregate principal amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Issuer and the Restricted Subsidiaries Company may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent any manner not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(gd) 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 in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in U.S. dollars that is actually received by the IssuerCompany upon converting such portion into U.S. dollars.
(he) For the purposes of clause (ii) of Section 4.08(a), the following will be deemed to be cash:
(i) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Parent Guarantor or a Restricted Subsidiary (other than Subordinated Indebtedness of the Company or a Guarantor) and the release of the Parent Guarantor or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition;
(ii) securities, notes or other obligations received by the Parent Guarantor or any Restricted Subsidiary of the Parent Guarantor from the transferee that are converted by the Parent Guarantor or such Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Disposition;
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition (other than intercompany debt owed to the Parent Guarantor or any Restricted Subsidiary), to the extent that the Parent Guarantor and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition;
(iv) consideration consisting of Indebtedness of the Parent Guarantor or the Company (in each case, other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Parent Guarantor or any Restricted Subsidiary; and
(v) any Designated Non-Cash Consideration received by the Parent Guarantor or any Restricted Subsidiary in such Asset Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section 4.08 that is at that time outstanding, not to exceed the greater of (i) $25.0 million and (ii) 2.0% of Consolidated Total Assets (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) The Asset Disposition Offer, in so far as it relates to the Notes, Offer will remain open for a period of not no less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of 10 days but no more than 60 days from the Exchange Act and any other applicable securities laws or regulations in connection with date the Asset Disposition Offer is made (the “Asset Disposition Offer Period”). No later than five (5) three Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will Company shall apply all Excess Proceeds to the purchase of the aggregate principal amount of Notes and, to the extent it electsif applicable, Pari Passu Indebtedness (on a pro rata basis, if applicable), required to be purchased by it offered for purchase pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) and the governing documentation relating to Pari Passu Indebtedness or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(ig) On or before the Asset Disposition Purchase Date, the Issuer willThe Company will comply, to the extent lawfulapplicable, accept for payment, on a pro rata basis with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent necessarysuch laws or regulations are applicable in connection with the repurchase of Notes pursuant to this Section 4.08. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Asset Disposition Offer Amount of Notes Company will comply with the applicable securities laws and Pari Passu Indebtedness or portions of Notes regulations and Pari Passu Indebtedness so validly tendered and shall not properly withdrawn pursuant be deemed to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess have breached its obligations under this Indenture by virtue thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 1 contract
Sources: Indenture (Pagaya Technologies Ltd.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition unless:
(1) unless the Issuer Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) such Asset 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 non-cash consideration), as determined in good faith by an Officer or the Board of Directors of the IssuerDirectors, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), and at least 75% of the consideration from thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents. With respect to any Asset Disposition occurring on or after the Series A/B Issue Date from which the Company or any Restricted Subsidiary receives Net Available Cash, the Company or such series of related Asset Dispositions Restricted Subsidiary shall (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since i) within 360 days after the Issue Date (except date such Net Available Cash is received and to the extent any the Company or such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received Restricted Subsidiary elects (or is required by the Issuer terms of any Senior Indebtedness) to (A) apply an amount equal to such Net Available Cash to prepay, repay or purchase Senior Indebtedness of the Company or such Restricted Subsidiary, as in each case owing to a Person other than the case may beCompany or any Affiliate of the Company, is or (B) invest an equal amount, or the amount not so applied pursuant to clause (A), in the form Additional Assets (including by means of cash, Cash Equivalents or Temporary Cash Investments.
(c) After the receipt of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash from an Asset Disposition, received by the Issuer Company or a another Restricted Subsidiary, as the case may be, may ) and (ii) apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such excess Net Available Cash (to the extent not applied pursuant to clause (i)) to prepay, repay, purchase or redeem any Indebtedness incurred under as provided in the following paragraphs of this Section 4.04(b)(1) or any Guarantor Indebtedness4.6; provided, however, that, that in connection with any prepayment, repayment or purchase of Senior Indebtedness pursuant to this Section 4.08(c)(1)(B)(i)clause (A) above, the Issuer Company or such Restricted Subsidiary will shall retire such Senior Indebtedness and will shall cause the related loan commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemed; purchased. The amount of Net Available Cash required to be applied pursuant to clause (ii) unless included above and not theretofore so applied shall constitute "Excess Proceeds." Pending application 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 $5 million, the Company shall, not later than 30 days after the end of the period during which the Company is required to apply such Excess Proceeds pursuant to clause (i) of the immediately preceding paragraph of this Section 4.08(c)(1)(B)(i4.6(a) (or, if the Company so elects, at any time within such period), make an offer (a "Series A/B Excess Proceeds Offer"), first, to prepaypurchase Series A/B Securities, repayif any are outstanding, in accordance with the Existing Indenture (as in effect on the Issue Date) and, second, in the event that any Excess Proceeds are not applied to a Series A/B Excess Proceeds Offer, offer to purchase or redeem from the Holders on a pro rata basis an aggregate principal amount of Securities equal to any Pari Passu Indebtedness remaining Excess Proceeds (rounded down to the nearest multiple of the Issuer or any Guarantor$1,000) on such date, at a purchase price of no more than equal to 100% of the principal amount of such Pari Passu Indebtedness plus Securities, plus, in each case, accrued and unpaid interest (if any) to the date of such prepayment, repayment, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, the date of purchase (subject 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 right extent not otherwise prohibited by the Indenture). For the purposes of Holders of record on this Section 4.6, the relevant record date following are deemed to receive interest due on the relevant interest payment date) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that be cash or cash equivalents: (x) the total aggregate principal amount assumption of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer Company or any Restricted Subsidiary); (iv) to purchase Subsidiary and the Notes through open-market purchases at a price equal to or higher than 100% release of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer Company or such Restricted Subsidiary electsfrom all liability on such Indebtedness in connection with such Asset Disposition, to invest in or purchase or commit to invest in or purchase Additional Assets and (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash y) securities received by the Issuer Company or another any Restricted Subsidiary) within 365 days Subsidiary from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, transferee that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved are immediately converted by the Board of Directors of the Issuer that is executed Company or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this IndentureSubsidiary into cash.
(db) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided Promptly, and in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) event within 30 days after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof Company becomes obligated to make an offer (“Asset Disposition Excess Proceeds Offer”) , the Company shall be obligated to all holders of the Notes and, deliver to the extent Trustee and send, by first-class mail to each Holder, at the Issuer or address appearing in the Security Register, a Guarantor elects, or written notice stating that the Issuer or a Guarantor is required Holder may elect to have his Securities purchased by the terms of other outstanding Pari Passu Indebtedness, Company either in whole or in part (subject to all holders of such other outstanding Pari Passu Indebtedness to purchase prorationing as hereinafter described in the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of event the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more thanProceeds Offer is oversubscribed) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice, which shall govern the terms of the Excess Proceeds Offer, shall include such disclosures as are required by law and shall specify (i) that the Excess Proceeds Offer is being made pursuant to this Section 4.6; (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 excess accordance with the terms thereof. No such purchase ; (iv) that, unless the Company defaults on 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 part shall reduce the notice at least three business days prior to 5:00 p.m., New York City time, on 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 at maturity of Securities 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 Notes held aggregate principal amount which the Company has offered to purchase are tendered pursuant to the Excess Proceeds Offer, the Company shall purchase Securities on a pro rata basis among the Securities tendered (with such adjustments as may be deemed appropriate by any holder the Company 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 below $200,000. The Issuer may satisfy the foregoing obligations with respect unpurchased portion of the Securities surrendered; and (ix) the instructions that Security holders must follow in order to any 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 below, 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 4.6(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 cancellation 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 Asset Disposition amount in cash sufficient to pay the Excess Proceeds Offer Amount for all Securities properly tendered to and accepted by making an Asset Disposition Offer the Company. The Trustee shall, on 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 respect all necessary endorsements and other appropriate materials duly completed, to such Net Available Cash the Company at the address specified in the notice at least three Business Days prior to the time period that may Purchase Date. Holders will be required by this Indenture with respect entitled to all 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 part facsimile transmission or letter setting forth the name of the available Net Available Cash (Holder, the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate principal amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to the Security (which shall be $1,000 or an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portionintegral multiple thereof) which was delivered for general corporate purposes, to the extent not prohibited purchase by the other covenants contained in this Indenture. If Holder, the aggregate principal amount of such Security (if any) that remains subject to the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount original notice of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in Offer and that has been or will be delivered for purchase by the case Company and a statement that such Holder is withdrawing his election to have such Security purchased. If at the expiration of an Advance Offerthe Excess Proceeds Offer Period the aggregate principal amount of Securities surrendered by Holders exceeds the Excess Proceeds Offer Amount, the Advance Portion) Company shall be allocated among select the Notes and Pari Passu Indebtedness 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 of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess ProceedsSecurities surrendered.
(ge) To A Security shall be deemed to have been accepted for purchase at the extent that any portion of Net Available Cash payable in respect of time the Notes is denominated in a currency other than dollarsTrustee, directly or through an agent, mails or delivers payment therefor to the amount thereof payable in respect of the Notes shall not exceed the net Dollar Equivalent of the amount that is actually received by the Issuersurrendering Holder.
(hf) The Asset Disposition OfferCompany shall comply, in so far as it relates to the Notesextent applicable, will remain open for a period with the requirements of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination repurchase of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it Securities pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to 4.6. To the extent lawful, accept for payment, on a pro rata basis to that the extent necessary, the Asset Disposition Offer Amount provisions of Notes and Pari Passu Indebtedness any securities laws or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance regulations conflict with the terms provisions of this Section 44.6, 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 (Oxford Automotive Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Borrower will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer Borrower 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 an Officer or the Board of Directors of the IssuerBorrower, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Effective Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.
(cb) After the receipt of Net Available Cash from an Asset Disposition, the Issuer Borrower or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer Borrower or such Restricted Subsidiary):
(1) within 365 days (or 15 days if the Specified Gross Leverage Condition is not satisfied) from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i4.08(b)(1), the Issuer Borrower or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; redeemed (ii) unless included in Section 4.08(c)(1)(B)(i4.08(b)(1)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer Borrower or any Guarantor, 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, purchase or redemption; , provided that the Issuer Borrower or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Guarantor Indebtedness or Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at Borrower delivers a price equal notice of prepayment with respect to or higher than 100% the Pari Ratable Share of the principal amount thereof, or makes an offer to Term Loans in accordance with Section 2.13(a)(ii) within the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued time period specified by this Section 4.08(b)(1) and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtednessthereafter complies with its obligations under Section 2.13(a)(iii); (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets which do not constitute Collateral (in each case, other than Subordinated Indebtedness of the Issuer Borrower or a Guarantor or Indebtedness owed to the Issuer Borrower or any Restricted Subsidiary); or (iv) to purchase prepay the Notes through open-market purchases at a price equal Loans in full pursuant to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) Section 2.12; or (v) to redeem redeem, repurchase or otherwise discharge the Borrower's $750 million aggregate principal amount of 5.25% Senior Notes as described under Section 3.07;due 2024 and 5.25% Series B Senior Notes due 2024.
(2) to the extent the Issuer Borrower or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer Borrower or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer Borrower that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer Borrower that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through – (3) of Section 4.08(c4.08(b), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c4.08(b), the Issuer Borrower and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this IndentureAgreement; provided, further, that the foregoing clauses (2) and (3), or any combination of clauses (2) and (3), shall only be available if the Specified Gross Leverage Condition is satisfied.
(dc) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in For the purposes of Section 4.08(c) 4.08(a)(2), the following will be deemed to constitute “Excess Proceeds.” On be cash:
(1) the 366th day assumption by the transferee (or other extinguishment in connection with the 546th day, transactions relating to such Asset Dispositions) of Indebtedness and any other liabilities (as recorded on the balance sheet of the Borrower or any Restricted Subsidiary or in the case of any Net Available Cash committed footnotes thereto, or if incurred or accrued subsequent to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) balance sheet, such liabilities that would have been reflected on the receipt Borrower’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereof if such incurrence or accrual had taken place on or prior to the date of such Net Available Cashbalance sheet, if as determined in good faith by the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10Borrower) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes andBorrower or any Restricted Subsidiary (other than Subordinated Indebtedness of the Borrower or a Guarantor) and the release of the Borrower or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition;
(2) securities, notes or other obligations received by the Borrower or any Restricted Subsidiary from the transferee that are converted by the Borrower 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 Issuer Borrower and each other Restricted Subsidiary (as applicable) are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition;
(4) consideration consisting of Indebtedness of the Borrower or a Guarantor elects, (other than Subordinated Indebtedness) received after the Effective Date from Persons who are not the Borrower or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (Restricted Subsidiary; and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e5) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Designated Non-Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually Consideration received by the Issuer.
(h) The Borrower or any Restricted Subsidiary in such Asset Disposition OfferDispositions having an aggregate fair market value, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply taken together with Section 14(e) of the Exchange Act and any all other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it Designated Non-Cash Consideration received pursuant to this Section 4.08 that is at that time outstanding, not to exceed (at the “time of the receipt of such Designated Non-Cash Consideration, or, at the Borrower’s option, at the time of contractually agreeing to such Asset Disposition) the greater of $1,040 million and 25% of L2QA Pro Forma EBITDA (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received or, at the option of the Borrower, on the date of contractually agreeing to the relevant Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered without giving effect to subsequent changes in response to the Asset Disposition Offervalue).
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 1 contract
Sources: Credit Agreement (Altice USA, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors or an Officer of the Issuer, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.
(c) After the receipt of Net Available Cash from an Asset Disposition, the Equivalents. The Issuer or a any of its Restricted SubsidiarySubsidiaries, as the case may beat its respective option, may apply such Net Available Cash directly from any Asset Disposition to
(i) (A) prepay, repay or indirectly purchase any Indebtedness of a Non-Guarantor or that is secured by a Lien (at the option of in each case, other than Indebtedness owed to the Issuer or such any Restricted Subsidiary):
) or Indebtedness under the Credit Agreement (1or any Refinancing Indebtedness in respect thereof) within 365 days from the later of (A1) the date of such Asset Disposition and (B2) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; or (iiB) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, repay or purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase repayment or redemptionpurchase; provided that further that, to the extent the Issuer redeems, repays or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase repurchases Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if B), the Issuer or such Guarantor purchases 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 a price equal 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 or higher than all Holders to purchase their Notes at 100% of the principal amount thereof, or makes an offer to plus the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notesaccrued but unpaid interest, plus accrued and unpaid interest toif any, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtednesswould otherwise be prepaid; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;and/or
(2ii) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (iA) the date of such Asset Disposition and (iiB) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses clause (1), (2), (3i) or clause (4) of Section 4.08(cii), the Issuer and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest use such Net Available Cash in any manner not prohibited by this Indenture.
(db) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) the preceding paragraph will be deemed to constitute “Excess Proceeds.” under this Indenture. On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such an Asset Disposition and (B) the receipt of such Net Available CashDisposition, if the aggregate amount of Excess Proceeds under this Indenture exceeds $100 10.0 million, the Issuer will within 10 Business Days be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders Holders of the Notes issued under this Indenture and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms to all holders of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture Section or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of and, with respect to the Notes, in minimum denominations of $200,000 2,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an will deliver notice of such Asset Disposition Offer electronically or by first-class mail, with respect to such Net Available Cash prior a copy to the time period 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 may 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 with respect to all or a part of the available Net Available Cash (the “Advance Portion”) and described in advance of being required to do so by this Indenture (an “Advance Offer”)such notice.
(e) [Reserved].
(fc) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent any purpose not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated by the Issuer among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(gd) 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 in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in U.S. dollars that is actually received by the IssuerIssuer upon converting such portion into U.S. dollars.
(he) The 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 Issuer or a Restricted Subsidiary (other than Subordinated Indebtedness of the Issuer or a Guarantor) and the release of the Issuer or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition;
(ii) securities, notes or other obligations received by the Issuer or any Restricted Subsidiary of the Issuer from the transferee that are converted by the Issuer or such Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Disposition;
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Issuer and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition;
(iv) consideration consisting of Indebtedness of the Issuer (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Issuer or any Restricted Subsidiary; and
(v) any Designated Non-Cash Consideration received by the Issuer 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 $20.0 million and 1.5% of Total Assets (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) Upon the commencement of an Asset Disposition Offer, in so far as it relates the Issuer shall send, or cause to be sent, by first class mail, a notice to the NotesTrustee and to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Asset Disposition Offer. Any Asset Disposition Offer shall be made to all Holders. The notice, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) which shall govern the terms of the Exchange Act and any other applicable securities laws or regulations in connection with Asset Disposition Offer, shall state:
(1) that the Asset Disposition Offer is being made pursuant to this Section 3.5 and that, to the extent lawful, all Notes tendered and not withdrawn shall be accepted for payment (unless prorated);
(2) the Asset Disposition payment amount, the Asset Disposition offered price, and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and not later than 60 days from the date such notice is mailed (the “Asset Disposition Offer PeriodSale Payment Date”). No later than five ;
(53) Business Days after that any Notes not tendered or accepted for payment shall continue to accrue interest in accordance with the termination of terms thereof;
(4) that, unless the Issuer defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer Period shall cease to accrue interest on and after the Asset Sale Payment Date;
(the “5) that Holders electing to have any Notes purchased pursuant to any Asset Disposition Purchase Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent at the address specified in the notice at least three Business Days before the Asset sale Payment Date”);
(6) that Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than two Business Days prior to the Issuer will purchase Asset Sale Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Note purchased;
(7) that if the aggregate principal amount of Notes andsurrendered by Holders exceeds the Asset Disposition payment amount, to the extent it elects, Pari Passu Indebtedness required Issuer shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by it pursuant the Issuer so that only Notes in denominations of $2,000 or integral multiples of $1,000 in excess thereof shall be purchased); and
(8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to this Section 4.08 the unpurchased portion of the Notes surrendered (the “Asset Disposition Offer Amount”or transferred by book-entry).
(g) or, if less than If the Asset Disposition Offer Amount has been so validly tenderedSale Payment Date is on or after a record date and on or before the related interest payment date, all any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes and Pari Passu Indebtedness validly tendered in response pursuant to the Asset Disposition Offer.
(ih) On or before the Asset Disposition Purchase Sale Payment Date, the Issuer will, to the extent lawful, permitted by law,
(1) accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of payment all Notes and Pari Passu Indebtedness issued by it or portions of Notes and Pari Passu Indebtedness so validly thereof properly tendered and not properly withdrawn pursuant to the Asset Disposition Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Asset Disposition payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawncause to be delivered, all Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof were accepted for payment have been tendered to and purchased by the Issuer.
(i) The Issuer in accordance will comply, to the extent applicable, with the terms 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 Section 4Indenture, the Issuer will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Indenture by virtue thereof.
Appears in 1 contract
Sources: Indenture (Bankrate, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company and any Permitted Affiliate Parent will not, and will not permit any of its the Restricted Subsidiaries to, to make any Asset Disposition unless:
(1) the Issuer Company, such Permitted Affiliate Parent 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), ) (including as determined in good faith by an Officer or to the Board value of Directors of the Issuer, all non-cash consideration) of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); andDisposition;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent unless the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company, such Permitted Affiliate Parent or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) is reinvested or applied to prepay the receipt of such Net Available Cash (i) to prepay, repay, purchase Loans or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Other Applicable Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount in accordance with Section 2.05(b)(i) of Notes at least equal this Agreement.
(b) For the purposes of this Section 4.10, the following will be deemed to the proportion that be cash:
(x1) the total aggregate principal amount assumption by the transferee of Notes outstanding bears to Indebtedness (yother than Subordinated Obligations) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase any Loan Party or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor Loan Party and the release of such Loan Party or any such Restricted Subsidiary from all liability on such Indebtedness that is secured on assets in connection with such Asset Disposition (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on which case the relevant record date Borrower will, without further action, be deemed to receive interest due on the relevant interest payment datehave applied such deemed cash to Indebtedness in accordance with Section 2.05(b)(i) or (v) to redeem the Notes as described under Section 3.07of this Agreement);
(2) to securities, notes or other obligations received by the extent Company, a Permitted Affiliate Parent or any Restricted Subsidiary from the Issuer transferee that are convertible by the Company, such Permitted Affiliate Parent or such Restricted Subsidiary elects, to invest in into cash or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by Equivalents within 180 days following the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date closing of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th dayDisposition;
(3) to make Indebtedness of any Restricted Subsidiary that is no longer a capital expenditure within 365 days from the later of (A) the date Restricted Subsidiary as a result of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes andDisposition, to the extent that the Issuer or a Guarantor electsCompany, or the Issuer or a Guarantor is required by the terms any Permitted Affiliate Parent and each other Restricted Subsidiary are released from any guarantee of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% payment of the principal amount of such Notes and 100Indebtedness in connection with such Asset Disposition;
(4) consideration consisting of Indebtedness of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary;
(5) any Designated Non-Cash Consideration received by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value not to exceed 25.0% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, consideration from such Asset Disposition (excluding any 225 95007600_2 consideration received from such Asset Disposition in accordance with Section 4.10(b)(1) to Section 4.10(b)(4)) (with the procedures set forth in this Indenture fair market value of each item of Designated Non-Cash Consideration being measured at the time received or, at the option of the Company or any Permitted Affiliate Parent, at the agreements governing the Pari Passu Indebtedness, as applicabletime of contractually agreeing to such Asset Disposition, and without giving effect to subsequent changes in the case of the Notes, value);
(6) in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect addition to any Net Available Designated Non-Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn Consideration received pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance PortionSection 4.10(b)(5), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Designated Non-Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually Consideration received by the Issuer.
(h) The Company, a Permitted Affiliate Parent or any Restricted Subsidiary in such Asset Disposition OfferDispositions having an aggregate fair market value, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply taken together with Section 14(e) of the Exchange Act and any all other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it Designated Non-Cash Consideration received pursuant to this Section 4.08 4.10(b)(6) that is at that time outstanding, not to exceed the greater of $75.0 million and 5.0% of Total Assets (with the “Asset Disposition Offer Amount”) fair market value of each item of Designated Non-Cash Consideration being measured at the time received or, if less than at the option of the Company or any Permitted Affiliate Parent, at the time of contractually agreeing to such Asset Disposition Offer Amount has been so validly tenderedDisposition, all Notes and Pari Passu Indebtedness validly tendered without giving effect to subsequent changes in response to the Asset Disposition Offer.value);
(i7) On consideration consisting of securities or before obligations issued, insured or unconditionally guaranteed by a government (or any agency or instrumentality thereof) of a country where the Asset Disposition Purchase DateCompany, a Permitted Affiliate Parent or any Restricted Subsidiary is organized or located; and
(8) any Capital Stock or assets of the Issuer will, kind referred to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case definition of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof“Additional Assets”.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
unless (1i) the Issuer Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the Issuer, Fair Market Value of the shares and assets subject to such Asset Disposition and (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and
(2ii) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 7580% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis thereof received by the Issuer Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash, Temporary Cash Equivalents Investments or other Qualified Proceeds (provided that the aggregate Fair Market Value of Qualified Proceeds (other than cash and Temporary Cash Investments.
(c) After shall not exceed $10 million since the Closing Date). Within 365 days after the receipt of any Net Available Cash from an such Asset Disposition, the Issuer Company or a such Restricted Subsidiary, as the case may be, Subsidiary may apply such an amount equal to 100% of the Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (iw) to prepayrepay or cash collateralize any Credit Agreement Obligations, repayto repay Indebtedness of the Company or any of its Restricted Subsidiaries secured by assets not in the Collateral, purchase or redeem to repay any Indebtedness incurred under Section 4.04(b)(1of any Restricted Subsidiary that is not a Guarantor; (x) to acquire all or any Guarantor Indebtednesssubstantially all of the assets of another Permitted Business; (y) to make a capital expenditure; or (z) to acquire other long-term assets that are used or useful in the Permitted Business; provided, however, that, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i)clause (x) above, the Issuer Company or such Restricted Subsidiary will shall retire such Indebtedness and will shall cause the related loan commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaidrepaid or purchased. For the purposes of clause (a)(ii) of this Section 4.06 only, purchased the following are deemed to be cash: (A) the assumption of any liabilities (as shown on the Company's or redeemed; (iia Restricted Subsidiary's most recent balance sheet) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer Company or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed contingent liabilities and liabilities that are by their terms subordinated to the Issuer Notes or any Restricted Subsidiary); (ivNote Guarantee) pursuant to purchase a customary novation agreement that releases the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer Company or such Restricted Subsidiary elects, to invest from further liability in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary connection with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement securities or a commitment approved other obligations received by the Board of Directors of Company or any Restricted Subsidiary from the Issuer transferee that is executed or approved are converted within such time will satisfy this requirement, so long as such investment is consummated within 180 90 days of receipt by the Company or such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending Restricted Subsidiary into cash. Pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c)Cash, the Issuer and the Company or such Restricted Subsidiaries Subsidiary may temporarily reduce Indebtedness revolving credit borrowings or otherwise invest such the Net Available Cash in any manner that is not prohibited by this Indenture.
(db) Any Net Available Cash from Asset Dispositions that is are not applied or invested or committed to be applied or invested as provided in the preceding paragraphs of this Section 4.08(c) will be deemed to 4.06 shall constitute “"Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if " When the aggregate amount of Excess Proceeds exceeds $100 15.0 million, the Issuer will be required within ten (10) Business Days thereof to Issuers shall make an Asset Disposition offer (“Asset Disposition the "Offer”") to all holders Holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to and all holders of such other outstanding Pari Passu Indebtedness that is pari passu in right of payment with the Notes containing provisions similar to those set forth in Section 4.06(c) with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of such Notes and any such Pari Passu other pari passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an . The offer price in respect of the Notes in an amount any Offer shall be equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, including Additional Interest, if any, to, but not including, to the date of purchase, and shall be payable in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereofcash. No such purchase in part shall reduce the principal amount at maturity of the Notes held by If any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case remain after consummation of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries Issuers may use any remaining those Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent any purpose not otherwise prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu pari passu Indebtedness surrendered by holders or lenders, collectively, tendered into such Offer exceeds the amount of Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) Trustee shall be allocated among select the Notes and Pari Passu such other pari passu Indebtedness to be purchased on a pro rata basis on basis; provided, however, that the basis Issuers shall not be obligated to purchase Notes in denominations other than integral multiples of the aggregate $1,000 principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)at maturity. Upon completion of any Asset Disposition each Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before Promptly, and in any event within 10 days after the Asset Disposition Purchase DateCompany becomes obligated to make an Offer, the Issuer will, Company shall be obligated to deliver to the extent lawfulTrustee and send, accept for paymentby first-class mail to each Holder, on a pro rata basis written notice stating that the Holder may elect to have his Notes purchased by the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness Company either in whole or portions of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant in part (subject to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, prorating as hereinafter described in the case of event the Notes, in minimum denominations of $200,000 and 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 excess thereofgood 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), (2) a description of material developments in the Company's business subsequent to the date of the latest of such reports, and (3) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Notes pursuant to the Offer, together with the address referred to in clause (iii).
(jii) The Issuer will 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 Officer’s Officers' Certificate as to (1) the amount of the Offer (the "Offer Amount"), (2) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.06(a) and (b). Not later than one Business Day before the Purchase Date, the Company shall also irrevocably deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust) an amount equal to the Offer Amount with written instructions for investment in Temporary Cash Investments and to be held for payment in accordance with the provisions of this Section 4.06. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancelation the Notes or portions thereof that have been properly tendered to and are to be accepted by the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the Offer Amount delivered by the Company to the Trustee is greater than the purchase price of the Notes (and such other pari passu Indebtedness) tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(iii) 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 or Notes which were delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Note or Notes purchased. If at the expiration of the Offer Period the aggregate principal amount of Notes and any such other pari passu Indebtedness included in the Offer surrendered by holders thereof exceeds the Offer Amount, the Company shall select the Notes and such other pari passu 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 such other pari passu Indebtedness in denominations of $1,000, or integral multiples thereof, shall be purchased). Holders whose Notes are purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered
(iv) 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 or portions thereof were are to be accepted for payment by the Issuer Company pursuant to and in accordance with the terms of this Section 4Section. 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.
(v) The Issuers shall comply in all material respects with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Disposition provisions of this Indenture, the Issuers shall comply in all material respects with the applicable securities laws and regulations and shall not be deemed to have breached their obligations under the Asset Disposition provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Sources: Indenture (On Semiconductor Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Borrower will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer Borrower 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 an Officer or the Board of Directors of the IssuerBorrower, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Closing Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis basis) received by the Issuer Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.
(cb) After the receipt of Net Available Cash from an Asset Disposition, the Issuer Borrower or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer Borrower or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness); provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i4.08(b)(1), the Issuer Borrower or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i4.08(b)(1)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer Borrower or any Guarantor, 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, purchase or redemption; , provided that the Issuer Borrower or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at Borrower delivers a price equal notice of prepayment with respect to or higher than 100% the Pari Ratable Share of the principal amount thereof, or makes an offer to Term Loans in accordance with Section 2.13(a)(ii) within the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued time period specified by this Section 4.08(b)(1) and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtednessthereafter complies with its obligations under Section 2.13(a)(iii); (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets which do not constitute Collateral (in each case, other than Subordinated Indebtedness of the Issuer Borrower or a Guarantor or Indebtedness owed to the Issuer Borrower or any Restricted Subsidiary); or (iv) to purchase prepay the Notes through open-market purchases at a price equal Loans in full pursuant to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.072.12;
(2) to the extent the Issuer Borrower or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer Borrower or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer Borrower that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer Borrower that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through — (3) of Section 4.08(c)4.08(b) above, provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c4.08(b), the Issuer Borrower and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this IndentureAgreement.
(dc) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in For the purposes of Section 4.08(c) 4.08(a)(2), the following will be deemed to constitute “Excess Proceeds.” On be cash:
(1) the 366th day assumption by the transferee (or other extinguishment in connection with the 546th day, transactions relating to such Asset Dispositions) of Indebtedness and any other liabilities (as recorded on the balance sheet of the Borrower or any Restricted Subsidiary or in the case of any Net Available Cash committed footnotes thereto, or if incurred or accrued subsequent to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) balance sheet, such liabilities that would have been reflected on the receipt Borrower’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereof if such incurrence or accrual had taken place on or prior to the date of such Net Available Cashbalance sheet, if as determined in good faith by the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10Borrower) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes andBorrower or any Restricted Subsidiary (other than Subordinated Indebtedness of the Borrower or a Guarantor) and the release of the Borrower or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition;
(2) securities, notes or other obligations received by the Borrower or any Restricted Subsidiary from the transferee that are converted by the Borrower 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 Issuer Borrower and each other Restricted Subsidiary (as applicable) are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition;
(4) consideration consisting of Indebtedness of the Borrower or a Guarantor elects, (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Borrower or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (Restricted Subsidiary; and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e5) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Designated Non-Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually Consideration received by the Issuer.
(h) The Borrower or any Restricted Subsidiary in such Asset Disposition OfferDispositions having an aggregate fair market value, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply taken together with Section 14(e) of the Exchange Act and any all other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it Designated Non-Cash Consideration received pursuant to this Section 4.08 (that is at that time outstanding, not to exceed the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations greater of $200,000 110 million and in integral multiples 5% of $1,000 in excess thereof.
L2QA Pro Forma EBITDA (j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms fair market value of this Section 4each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
Appears in 1 contract
Sources: Credit Agreement (Altice USA, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the IssuerCompany, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After an amount equal to 100% of the receipt of Net Available Cash from an such Asset DispositionDisposition is applied by the Issuers or such Restricted Subsidiary, as the Issuer case may be:
(i) to the extent the Company or a any Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly elects (or indirectly is required by the terms of any Indebtedness), (at A) to prepay, repay or purchase any Indebtedness of a Non-Guarantor, Indebtedness that is secured by a Lien or Permitted Funding Indebtedness (in each case, other than Indebtedness owed to the option of the Issuer Company or such any Restricted Subsidiary):
(1) within 365 days from the later of (A1) the date of such Asset Disposition and (B2) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (i), the Issuer Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; or (iiB) unless included in Section 4.08(c)(1)(B)(i), to prepay, repayrepay or purchase Pari Passu Indebtedness; provided further that, purchase to the extent the Company redeems, repays or redeem any repurchases Pari Passu Indebtedness of pursuant to this clause (B), the Issuer Company 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 any Guarantor, at a price of no more than above 100% of the principal amount of such Pari Passu Indebtedness plus accrued and unpaid interest thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to the date of such prepayment, repayment, all Holders to purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases their Notes at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to plus the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notesaccrued but unpaid interest, plus accrued and unpaid interest toif any, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtednesswould otherwise be prepaid; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;or
(2ii) to the extent the Issuer Company or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including Securitization Assets and by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 days from the later of (iA) the date of such Asset Disposition and (iiB) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer Company that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses clause (1), (2), (3i) or clause (4ii) of in Section 4.08(c3.5(a)(3), the Issuer Company and the its Restricted Subsidiaries may temporarily reduce Indebtedness (including Permitted Funding Indebtedness) or otherwise invest use such Net Available Cash in any manner not prohibited by this Indenture.
(db) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) the preceding paragraph will be deemed to constitute “Excess Proceeds.” under this Indenture. On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such an Asset Disposition and (B) or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds under this Indenture exceeds $100 25.0 million, the Issuer Issuers will within 10 Business Days be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders Holders of the Notes issued under this Indenture and, to the extent the Issuer or a Guarantor electsIssuers elect, or the Issuer or a Guarantor is required by the terms to all holders of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interestinterest and Additional Interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture Section or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 2,000 and in integral multiples of $1,000 in excess thereof. No The Issuers will deliver notice of such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer electronically or by first-class mail, with respect to such Net Available Cash prior a copy to the time period 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 may 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 with respect to all or a part of the available Net Available Cash (the “Advance Portion”) and described in advance of being required to do so by this Indenture (an “Advance Offer”)such notice.
(e) [Reserved].
(fc) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Issuer and the Restricted Subsidiaries Issuers may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, subject to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness. For the purposes , as applicable, and in minimum denominations of calculating the principal amount $2,000 and in integral multiples of any such Indebtedness not denominated $1,000 in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)excess thereof. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(gd) 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 in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in U.S. dollars that is actually received by the IssuerIssuers upon converting such portion into U.S. dollars.
(he) The 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 of the Company or 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;
(ii) 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;
(iii) 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;
(iv) consideration consisting of Indebtedness of the Company (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company or any Restricted Subsidiary; and
(v) 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 $70.0 million and 2.5% of Total Assets (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) Upon the commencement of an Asset Disposition Offer, in so far as it relates the Issuers shall send, or cause to be sent, electronically or by first class mail, a notice to the NotesTrustee and to each Holder at its registered address or otherwise in accordance with the procedures of DTC. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Asset Disposition Offer. Any Asset Disposition Offer shall be made to all Holders. The notice, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) which shall govern the terms of the Exchange Act and any other applicable securities laws or regulations in connection with Asset Disposition Offer, shall state:
(1) that the Asset Disposition Offer is being made pursuant to this Section 3.5 and that, to the extent lawful, all Notes tendered and not withdrawn shall be accepted for payment (unless prorated);
(2) the Asset Disposition payment amount, the Asset Disposition offered price, and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and not later than 60 days from the date such notices is mailed (the “Asset Disposition Offer PeriodSale Payment Date”). No later than five ;
(53) Business Days after that any Notes not tendered or accepted for payment shall continue to accrue interest in accordance with the termination of terms thereof;
(4) that, unless the Issuers default in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer Period shall cease to accrue interest on and after the Asset Sale Payment Date;
(the “5) that Holders electing to have any Notes purchased pursuant to any Asset Disposition Purchase Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent at the address specified in the notice at least three Business Days before the Asset Sale Payment Date”);
(6) that Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than two Business Days prior to the Issuer will purchase Asset Sale Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such ▇▇▇▇▇▇ is withdrawing its election to have such Note purchased;
(7) that if the aggregate principal amount of Notes andsurrendered by Holders exceeds the Asset Disposition payment amount, to the extent it elects, Pari Passu Indebtedness required Issuers shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by it pursuant the Issuers so that only Notes in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof shall be purchased); and
(8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to this Section 4.08 the unpurchased portion of the Notes surrendered (the “Asset Disposition Offer Amount”or transferred by book-entry).
(g) or, if less than If the Asset Disposition Offer Amount has been so validly tenderedSale Payment Date is on or after a record date and on or before the related interest payment date, all any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes and Pari Passu Indebtedness validly tendered in response pursuant to the Asset Disposition Offer.
(ih) On or before the Asset Disposition Purchase Sale Payment Date, the Issuer Issuers will, to the extent lawful, permitted by law,
(1) accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of payment all Notes and Pari Passu Indebtedness issued by it or portions of Notes and Pari Passu Indebtedness so validly thereof properly tendered and not properly withdrawn pursuant to the Asset Disposition Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Asset Disposition payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawncause to be delivered, all Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof were accepted for payment have been tendered to and purchased by the Issuer in accordance Issuers.
(i) The Issuers will comply, to the extent applicable, with the terms 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 Section 4Indenture, the Issuers will comply with the applicable securities laws and regulations and shall not be deemed to have breached their obligations under this Indenture by virtue thereof.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
unless (1i) the Issuer Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) such Asset 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 an Officer or the Board of Directors (including as to the value of the Issuerall non-cash consideration), of the shares and assets subject to such Asset Disposition and (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and
(2ii) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 7585% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis thereof received by the Issuer Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cashcash or Cash Equivalents. 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, Cash Equivalents the Company or Temporary Cash Investments.
(c) After such Restricted Subsidiary shall apply an amount equal to 100% of the receipt of Net Available Cash from such Asset Disposition at its election, to either (i) prepay, repay or purchase Senior Indebtedness or Indebtedness (other than any Preferred Stock) of a Wholly-Owned Subsidiary (in each case other than Indebtedness owed to the Company or an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option Affiliate of the Issuer or such Restricted Subsidiary):
Company (1) other than Bank Indebtedness)), within 365 days from the later of (A) the date of such Asset Disposition and (B) or the receipt of such Net Available Cash Cash; (iii) invest in Additional Assets within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; or (iii) make an offer pursuant to Section 3.7(b) to prepaypurchase the notes and other Senior Subordinated Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from any Asset Disposition (the "Pari Passu Notes") at 100% of the principal amount thereof (or 100% of the accreted value of such Pari Passu Notes so tendered if such Pari Passu Notes were issued at a discount) plus accrued and unpaid interest, repayif any, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtednessto the date of purchase; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i)clause (i) above, the Issuer Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) (except in ), unless such commitment is for the case provision of any a revolving Indebtedness) credit facility, to be permanently reduced in an amount equal to the principal amount so prepaid, repaidrepaid or purchased. Notwithstanding the foregoing provisions, purchased the Company and its Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this covenant exceed $1.0 million. Any Net Available Cash from an Asset Disposition that is not invested or redeemed; applied as provided and within the time period set forth in clauses (i) and (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, at a price first sentence of this paragraph will be deemed to constitute "Excess Proceeds." For the purposes of this Section 3.7 and for 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not includingother purpose, the date of purchase (subject following will be deemed to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that be cash: (x) the total aggregate principal amount assumption by the transferee of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Senior Indebtedness of the Issuer or a Guarantor Company or Indebtedness owed to the Issuer or of any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% Subsidiary of the principal amount thereof, or make an offer to all holders Company and the release of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer Company or such Restricted Subsidiary electsfrom all liability on such Senior Indebtedness or Indebtedness in connection with such Asset Disposition (in which case the Company will, without further action, be deemed to invest have applied such assumed Indebtedness in or purchase or commit to invest in or purchase Additional Assets accordance with clause (including by means i) of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash the preceding paragraph); (y) securities received by the Issuer Company or another any Restricted Subsidiary) within 365 days Subsidiary of the Company from the later of transferee that are promptly converted by the Company or such Restricted Subsidiary into cash; and (iz) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; providedfair market value, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved as determined by the Board of Directors of the Issuer that is executed Company in good faith, of any Designated Noncash Consideration received by the Company or approved within such time will satisfy this requirementany of its Restricted Subsidiaries in any Asset Disposition, so long taken together with the fair market value, as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved determined by the Board of Directors of the Issuer Company in good faith, of all other Designated Noncash Consideration received pursuant to this clause (z) that is executed or approved within such at that time will satisfy this requirementoutstanding, so long as such investment is consummated within 180 days not to exceed $25.0 million at the time of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value), in which case such Designated Noncash Consideration shall not constitute Net Available Cash, if .
(b) When the aggregate amount of Excess Proceeds exceeds $100 million5.0 million (with lesser amounts to be carried forward for purposes of determining whether an Offer (as defined) is required with respect to the Excess Proceeds from any subsequent Asset Disposition), the Issuer Company will be required within ten to apply such Excess Proceeds to the repayment of the Securities and any Pari Passu Notes as follows: (10A) Business Days thereof to the Company will make an offer to purchase (“Asset Disposition an "Offer”") to within ten days of such time from all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture in the maximum principal amount (expressed as a multiple of $1,000) of Securities that may be purchased out of an amount (the "Note Amount") equal to the product of such Excess Proceeds multiplied by a fraction, the numerator of which is the outstanding principal amount of the Securities and the denominator of which is the sum of the outstanding, principal amount of the Securities and the outstanding principal amount (or accreted value, as the agreements governing case may be) of the Pari Passu IndebtednessNotes at a purchase price of 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase and (B) the Company will make an offer to purchase any Pari Passu Notes (a "Pari Passu Offer") in an amount equal to the excess of the Excess Proceeds over the Security Amount at a purchase price of 100% of the principal amount (or accreted value, as applicablethe case may be) thereof plus accrued and unpaid interest, if any, to the date of purchase in accordance with the procedures (including prorating in the event of oversubscription) set forth in the documentation governing such Pari Passu Notes with respect to the Pari Passu Offer. If the aggregate purchase price of the Securities and Pari Passu Notes tendered pursuant to the Offer and the Pari Passu Offer is less than the Excess Proceeds, the remaining Excess Proceeds will be available to the Company to fund other corporate purposes not otherwise prohibited by this Indenture.
(1) Promptly, and in any event within 10 days after the case of Company is required to make an Offer, the NotesCompany will 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 minimum denominations of $200,000 and whole or in part (subject to prorating as hereinafter described in the event the Offer is oversubscribed) in integral multiples of $1,000 in excess thereofof principal amount, at the applicable purchase price. No The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such purchase in part shall reduce notice (the principal "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 will deliver to the Trustee an Officers' Certificate setting forth (i) the amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy Offer (the foregoing obligations with respect to any "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 3.7(a). Upon the expiration of the period (the "Offer Period") for which the Offer remains open, the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price of the Securities tendered by such Holder to the extent such funds are available to the Trustee.
(3) Holders electing to have a Security purchased will be required to surrender the Security, with an Asset Disposition by making an Asset Disposition Offer with respect appropriate form entitled "Option of Holder to such Net Available Cash Elect Purchase" duly completed, to the Company at the address specified in the notice prior to the time period that may be required by this Indenture with respect to all or a part expiration of the available Net Available Cash (Offer Period. Each Holder will be entitled to withdraw its election if the “Advance Portion”) in advance Trustee or the Company receives, not later than one Business Day prior to the expiration of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that Offer Period, a facsimile transmission or overnight mail from such Holder setting forth the aggregate name of such Holder, the principal amount of Notes the Security or Securities which were delivered for purchase by such Holder and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant a statement that such Holder is withdrawing his election to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenturehave such Security or Securities purchased. If at the expiration of the Offer Period the aggregate principal amount of the Notes Securities surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance OfferOffer Amount, the Advance Portion), Company shall select the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness Securities to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any (with such Indebtedness not denominated in dollars, such Indebtedness shall adjustments as may be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected deemed appropriate by the Issuer Company so that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and only Securities in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in 1,000, or integral multiples of $1,000 thereof, shall be purchased). Holders whose Securities are purchased only in excess thereof.
(j) The Issuer part will deliver be issued new Securities equal in principal amount to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by unpurchased portion of the Issuer in accordance with the terms of this Section 4Securities surrendered.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Following the Completion Date, the Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the IssuerCompany, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer Company or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer Company or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness); provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i4.08(c)(1), the Issuer Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 1 contract
Sources: Indenture (Altice USA, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Borrower will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer Borrower 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 an Officer or the Board of Directors of the IssuerBorrower, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Closing Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis basis) received by the Issuer Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.
(cb) After the receipt of Net Available Cash from an Asset Disposition, the Issuer Borrower or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer Borrower or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness); provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i4.08(b)(1), the Issuer Borrower or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i4.08(b)(1)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer Borrower or any Guarantor, 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, purchase or redemption; , provided that the Issuer Borrower or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at Borrower delivers a price equal notice of prepayment with respect to or higher than 100% the Pari Ratable Share of the principal amount thereof, or makes an offer to Term Loans in accordance with Section 2.13(a)(ii) within the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued time period specified by this Section 4.08(b)(1) and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtednessthereafter complies with its obligations under Section 2.13(a)(iii); (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets which do not constitute Collateral (in each case, other than Subordinated Indebtedness of the Issuer Borrower or a Guarantor or Indebtedness owed to the Issuer Borrower or any Restricted Subsidiary); or (iv) to purchase prepay the Notes through open-market purchases at a price equal Loans in full pursuant to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.072.12;
(2) to the extent the Issuer Borrower or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer Borrower or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer Borrower that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer Borrower that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through – (3) of Section 4.08(c)4.08(b) above, provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c4.08(b), the Issuer Borrower and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this IndentureAgreement.
(dc) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in For the purposes of Section 4.08(c) 4.08(a)(2), the following will be deemed to constitute “Excess Proceeds.” On be cash:
(1) the 366th day assumption by the transferee (or other extinguishment in connection with the 546th day, transactions relating to such Asset Dispositions) of Indebtedness and any other liabilities (as recorded on the balance sheet of the Borrower or any Restricted Subsidiary or in the case of any Net Available Cash committed footnotes thereto, or if incurred or accrued subsequent to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) balance sheet, such liabilities that would have been reflected on the receipt Borrower’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereof if such incurrence or accrual had taken place on or prior to the date of such Net Available Cashbalance sheet, if as determined in good faith by the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10Borrower) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes andBorrower or any Restricted Subsidiary (other than Subordinated Indebtedness of the Borrower or a Guarantor) and the release of the Borrower or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition;
(2) securities, notes or other obligations received by the Borrower or any Restricted Subsidiary from the transferee that are converted by the Borrower 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 Issuer Borrower and each other Restricted Subsidiary (as applicable) are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition;
(4) consideration consisting of Indebtedness of the Borrower or a Guarantor elects, (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Borrower or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (Restricted Subsidiary; and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e5) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Designated Non-Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually Consideration received by the Issuer.
(h) The Borrower or any Restricted Subsidiary in such Asset Disposition OfferDispositions having an aggregate fair market value, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply taken together with Section 14(e) of the Exchange Act and any all other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it Designated Non-Cash Consideration received pursuant to this Section 4.08 (that is at that time outstanding, not to exceed the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations greater of $200,000 110 million and in integral multiples 5% of $1,000 in excess thereof.
L2QA Pro Forma EBITDA (j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms fair market value of this Section 4each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
Appears in 1 contract
Sources: Credit Agreement (CSC Holdings LLC)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the IssuerCompany, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c3) After the receipt Company or any of Net Available Cash from an Asset Dispositionits Restricted Subsidiaries, the Issuer or a Restricted Subsidiaryat its respective option, as the case may be, may will apply such Net Available Cash directly from any Asset Disposition:
(a) (i) to prepay, repay or indirectly purchase any Indebtedness of a Non-Guarantor or that is secured by a Lien (at in each case, other than Indebtedness owed to the option of the Issuer Company or such any Restricted Subsidiary):
) or Indebtedness under the Credit Agreement (1or any Refinancing Indebtedness in respect thereof) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor IndebtednessCash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (a), the Issuer Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemedpurchased; or (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repayrepay or purchase Pari Passu Indebtedness; provided further that, purchase to the extent the Company redeems, repays or redeem any repurchases Pari Passu Indebtedness of pursuant to this clause (ii), the Issuer Company 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 any Guarantor, at a price of no more than above 100% of the principal amount of such Pari Passu Indebtedness plus accrued and unpaid interest thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to the date of such prepayment, repayment, all Holders to purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases their Notes at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to plus the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and but unpaid interest toand Additional Interest, but not includingif any, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtednesswould otherwise be prepaid; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;or
(2b) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer Company or another Restricted Subsidiary) within 365 days from the later of (iA) the date of such Asset Disposition and (iiB) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer Company that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses clause (1), (2), (3a) or clause (4b) of Section 4.08(c)above, the Issuer Company and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest use such Net Available Cash in any manner not prohibited by this Indenture.
(db) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) the preceding paragraph will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if under this Indenture. If the aggregate amount of Excess Proceeds under this Indenture exceeds $100 40.0 million, the Issuer Company will within 10 Business Days be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders Holders of the Notes issued under this Indenture and, to the extent the Issuer or a Guarantor elects, Company or the Issuer or a Guarantor is required by the terms elects, to all holders of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interestinterest and Additional 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 the case of and, with respect to the Notes, in minimum denominations of $200,000 2,000 and in integral multiples of $1,000 in excess thereof. No The Company will deliver notice of such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer electronically or by first-class mail, with respect to such Net Available Cash prior a copy to the time period Trustee and Agent, 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 may 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 with respect to all or a part of the available Net Available Cash (the “Advance Portion”) and described in advance of being required to do so by this Indenture (an “Advance Offer”)such notice.
(e) [Reserved].
(fc) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Issuer and the Restricted Subsidiaries Company may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent any purpose not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such ; provided that no Notes or other Pari Passu Indebtedness not denominated will be selected and purchased in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)an unauthorized denomination. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(gd) 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 in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in U.S. dollars that is actually received by the IssuerCompany upon converting such portion into U.S. dollars.
(he) The 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 Offerby a Foreign Subsidiary (a “Foreign Disposition”) is (x) prohibited or delayed by applicable local law, in so far as it relates (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous organizational or administrative impediments from being repatriated to the NotesUnited States, the portion of such Net Available Cash so affected will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time be required to comply be applied in compliance with this Section 14(e) of 3.5, and such amounts may be retained by the Exchange Act and any other applicable securities laws or regulations in connection with Foreign Subsidiary so long, but only so long, as the Asset Disposition Offer applicable local law will not permit repatriation to the United States (the “Asset Disposition Offer Period”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). No , 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 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 Section 3.5 and (ii) to the termination extent that the Company has determined in good faith that repatriation of any of or all the Asset Net Available Cash of any Foreign Disposition Offer Period would have an adverse Tax cost consequence with respect to such Net Available Cash (which for the “Asset Disposition Purchase Date”avoidance of doubt, includes, but is not limited to, any prepayment whereby doing so Holdings, the Company, any Restricted Subsidiary or any of their 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), the Issuer 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 purchase not, for the principal amount avoidance of Notes anddoubt, constitute a Default or an Event of Default.
(f) For the purposes of Section 3.5(a)(2), the following will be deemed to be cash:
(1) the assumption by the transferee of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than Subordinated Indebtedness of the Company or 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;
(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 it electsthat 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) 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, Pari Passu Indebtedness required to be purchased by it taken together with all other Designated Non-Cash Consideration received pursuant to this Section 4.08 3.5 that is at that time outstanding, not to exceed the greater of (i) $40.0 million; and (ii) 3.0% of the “Asset Disposition Offer Amount”) or, if less than Total Assets of the Asset Disposition Offer Amount has been so validly tendered, all Notes Company (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and Pari Passu Indebtedness validly tendered without giving effect to subsequent changes in response to the Asset Disposition Offervalue).
(ig) On To the extent that the provisions of any securities laws or before regulations conflict with the Asset Disposition Purchase Dateprovisions of this Indenture, the Issuer will, Company will comply with the applicable securities laws and regulations and shall not be deemed to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, have breached its obligations described in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess this Indenture by virtue thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 1 contract
Sources: Indenture (Cott Corp /Cn/)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make consummate any Asset Disposition unless:
unless (1i) the Issuer Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) such Asset 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 non-cash consideration), as determined in good faith by an Officer or the Board of Directors of the IssuerDirectors, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and
(2) in any such Asset Disposition, or series of related Asset Dispositions and (except to the extent the Asset Disposition is a Permitted Asset Swap), ii) at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis therefor received by the Issuer Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cashcash or cash equivalents, Cash Equivalents or Temporary Cash Investments.
provided, however, that this clause (cii) After shall not apply if the receipt of Net Available Cash from an Asset Disposition, the Issuer Company or a Restricted SubsidiarySubsidiary 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, as the case may be, may apply Company or such Restricted Subsidiary shall (i) within 365 days after the date such Net Available Cash directly or indirectly (at is received and to the option of extent the Issuer Company or such Restricted Subsidiary):
Subsidiary elects (1or is required by the terms of any Senior Indebtedness) within 365 days from the later of to (A) the date of such Asset Disposition and (B) the receipt of apply an amount equal to such Net Available Cash (i) to prepay, repay, purchase or redeem any legally defease Senior Indebtedness incurred under Section 4.04(b)(1) 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 (B) invest an equal amount, or the amount not so applied pursuant to clause (A), in Additional Assets (including by means of an Investment in Additional Assets by a Subsidiary Guarantor Indebtednesswith 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, that in connection with any prepayment, repayment or purchase of Senior Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (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 Issuer Company or such Restricted Subsidiary will shall retire such Senior Indebtedness and will shall cause the related loan commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemed; purchased. The amount of Net Available Cash required to be applied pursuant to clause (ii) unless included 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 4.08(c)(1)(B)(i4.7(a) (or, if the Company so elects, at any time within such period), make an offer (an "Excess Proceeds Offer") to prepaypurchase from the Holders of Securities and Other Qualified Securities (determined on a pro rata basis according to the accreted value or aggregate principal amount, repayas the case may be, purchase or redeem any Pari Passu Indebtedness of the Issuer or any GuarantorSecurities and Other Qualified Securities) in an amount equal to the Excess Proceeds (rounded down to the nearest multiple of $1,000) on such date, at a purchase price of no more than equal to 100% of the principal amount of such Pari Passu Indebtedness plus Securities, plus, in each case, accrued and unpaid interest (if any) to the date of such prepayment, repayment, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, the date of purchase (subject 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 right extent not otherwise prohibited by this Indenture). For the purposes of Holders of record on this Section 4.7, the relevant record date following are deemed to receive interest due on the relevant interest payment date) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that be cash or cash equivalents: (x) the total aggregate principal amount assumption of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer Company or any Restricted Subsidiary); (iv) to purchase Subsidiary and the Notes through open-market purchases at a price equal to or higher than 100% release of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer Company or such Restricted Subsidiary electsfrom all liability on such Indebtedness in connection with such Asset Disposition, to invest in or purchase or commit to invest in or purchase Additional Assets and (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash y) securities received by the Issuer Company or another any Restricted Subsidiary) within 365 days Subsidiary from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, transferee that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved are immediately converted by the Board of Directors of the Issuer that is executed Company or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this IndentureSubsidiary into cash.
(db) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided Promptly, and in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) event within 30 days after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof Company becomes obligated to make an offer (“Asset Disposition Excess Proceeds Offer”) , the Company shall be obligated to all holders of the Notes and, deliver to the extent Trustee and send, by first-class mail to each Holder, at the Issuer or address appearing in the Security Register, a Guarantor elects, or written notice stating that the Issuer or a Guarantor is required Holder may elect to have his Securities purchased by the terms of other outstanding Pari Passu Indebtedness, Company either in whole or in part (subject to all holders of such other outstanding Pari Passu Indebtedness to purchase prorationing as hereinafter described in the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of event the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more thanProceeds Offer is oversubscribed) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice, which shall govern the terms of the Excess Proceeds Offer, shall include such disclosures as are required by law and shall specify
(i) that the 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 excess accordance with the terms thereof. No such purchase ; (iv) that, unless the Company defaults in part making the payment, any Security accepted for payment pursuant to the Excess Proceeds Offer shall reduce 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 at maturity of Securities 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 Notes held aggregate principal amount which the Company has offered to purchase are tendered pursuant to the Excess Proceeds Offer, the Company shall purchase Securities on a pro rata basis among the Securities tendered (with such adjustments as may be deemed appropriate by any holder the Company 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 below $200,000. The Issuer may satisfy the foregoing obligations with respect unpurchased portion of the Securities surrendered; and (ix) the instructions that Securityholders must follow in order to any 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 Asset Disposition amount in cash sufficient to pay the Excess Proceeds Offer Amount for all Securities properly tendered to and accepted by making an Asset Disposition Offer 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 respect all necessary endorsements and other appropriate materials duly completed, to such Net Available Cash the Company at the address specified in the notice at least three Business Days prior to the time period that may Purchase Date. Holders will be required by this Indenture with respect entitled to all 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 part facsimile transmission or letter setting forth the name of the available Net Available Cash (Holder, the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate principal amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to the Security (which shall be $1,000 or an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portionintegral multiple thereof) which was delivered for general corporate purposes, to the extent not prohibited purchase by the other covenants contained in this Indenture. If Holder, the aggregate principal amount of such Security (if any) that remains subject to the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount original notice of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in Offer and that has been or will be delivered for purchase by the case Company and a statement that such Holder is withdrawing his election to have such Security purchased. If at the expiration of an Advance Offerthe Excess Proceeds Offer Period the aggregate principal amount of Securities surrendered by Holders exceeds the Excess Proceeds Offer Amount, the Advance Portion) Company shall be allocated among select the Notes and Pari Passu Indebtedness 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 of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess ProceedsSecurities surrendered.
(ge) To A Security shall be deemed to have been accepted for purchase at the extent that any portion of Net Available Cash payable in respect of time the Notes is denominated in a currency other than dollarsTrustee, directly or through an agent, mails or delivers payment therefor to the amount thereof payable in respect of the Notes shall not exceed the net Dollar Equivalent of the amount that is actually received by the Issuersurrendering Holder.
(hf) The Asset Disposition OfferCompany shall comply, in so far as it relates to the Notesextent applicable, will remain open for a period with the requirements of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination repurchase of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it Securities pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to 4.7. To the extent lawful, accept for payment, on a pro rata basis to that the extent necessary, the Asset Disposition Offer Amount provisions of Notes and Pari Passu Indebtedness any securities laws or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance regulations conflict with the terms provisions of this Section 44.7, 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) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the IssuerCompany, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and;
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), ) at least 75% of the consideration from such Asset Disposition or such series of related Disposition, together with all other Asset Dispositions since the Issue Date (excluding any consideration on a cumulative basis), (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such Restricted Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or Temporary Cash Investments.Equivalents; and
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(13) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of the Net Available Cash from such Asset Disposition (as may be extended by an Acceptable Commitment or a Second 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 any Restricted Subsidiary, as the case may be, elects:
(i) (a) to reduce, prepay, repayrepay or purchase any Secured Indebtedness, purchase including Indebtedness under any Credit Facility (or redeem any Refinancing Indebtedness incurred under Section 4.04(b)(1in respect thereof) or any Permitted Funding Indebtedness; provided, however, that Net Available Cash may only be applied to the prepayment or repayment of Permitted Funding Indebtedness if it was secured by a Lien on the asset or assets that were subject to such Asset Disposition; (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 5.6 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 or Permitted Funding Indebtedness); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (i), the Issuer Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except other than obligations in the case respect of any revolving Indebtednessasset-based credit facility to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to be permanently reduced in an amount equal to the principal amount so reduced, prepaid, repaid, purchased repaid or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07purchased;
(2a) to the extent the Issuer or such Restricted Subsidiary elects, to invest (including capital expenditures) in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by Subsidiary); or
(b) to invest (including capital expenditures) in any one or more businesses, properties or assets that replace the Issuer or another Restricted Subsidiary) within 365 days from businesses, properties and/or assets that are the later of (i) the date subject of such Asset Disposition and Disposition, with any such investment made by way of a capital or other lease valued at the present value of the minimum amount of payments under such lease (ii) as reasonably determined by the receipt of such Net Available CashCompany); provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or shall be treated as a permitted application of Net Available Cash from the date of such commitment approved by with the Board of Directors of the Issuer good faith expectation that is executed or approved within an amount equal to Net Available Cash will be applied to satisfy such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
commitment (3an “Acceptable Commitment”) to make a capital expenditure within 365 days from and, in the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, event that any Acceptable Commitment is later cancelled or terminated for any reason before such capital expenditure made pursuant to amount is applied in connection therewith, the Company or such Restricted Subsidiary enters into another Acceptable Commitment (a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated “Second Commitment”) within 180 days of such 365th daycancellation or termination; or
(4iii) any combination of clauses the foregoing; provided that (1) through (3) of Section 4.08(c), provided that, pending the final application of the amount of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of pursuant to this Section 4.08(c)3.5, the Issuer and Company or the applicable Restricted Subsidiaries may apply such Net Available Cash temporarily to reduce Indebtedness (including under the Credit Facilities) or otherwise invest apply such Net Available Cash in any manner not prohibited by this Indenture.
, and (d2) Any 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 from attributable to any given Asset Dispositions Disposition (provided that is not applied or 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 or committed to be applied or invested as provided pursuant to and in Section 4.08(caccordance with clause (ii) will be deemed above with respect to constitute such Asset Disposition. If, with respect to any Asset Disposition, at the expiration of the Proceeds Application Period with respect to such Asset Disposition, there remains Net Available Cash in excess of $50 million (such amount, “Excess Proceeds.” On ”), then subject to the 366th day (or the 546th day, in the case of any Net Available Cash committed limitations with respect to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 millionForeign Dispositions set forth below, the Issuer will be required within ten (10) Business Days thereof to Company shall make an offer (an “Asset Disposition Offer”) no later than ten business days after the expiration of the Proceeds Application Period to all holders Holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is if required by the terms of other outstanding any Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness Indebtedness, to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies Indebtedness, as appropriate, on a pro rata basis, that may be purchased out of the such Excess Proceeds, if any, at an offer price price, in respect the case of the Notes Notes, in cash in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of thereof (or in the event such Notes and other Indebtedness was issued with original issue discount, 100% of the principal amount of Pari Passu Indebtedness, in each caseaccreted value thereof), plus accrued and unpaid 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 or and the agreements agreement governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 2,000 and in integral multiples of $1,000 in excess thereof. No such 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 in part shall reduce the principal amount at maturity date to each Holder of the Notes held by any holder at such Holder’s registered address or otherwise in accordance with the applicable procedures of DTC, with a copy to below $200,000the Trustee. The Issuer Company may satisfy the foregoing obligations obligation with respect to any the Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture expiration of the Proceeds Application Period (the “Advance Offer”) with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”)Indenture.
(e) [Reserved].
(fb) To the extent that the aggregate amount (or accreted value, as applicable) of Notes and and, if applicable, any other Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to or otherwise surrendered in connection with an Asset Disposition Offer is less than the made with Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)) is less than the amount offered in an Asset Disposition Offer, the Issuer and the Restricted Subsidiaries Company may use include any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) (the “Declined Excess Proceeds”) for general corporate purposes, to the extent any purpose not otherwise prohibited by the other covenants contained in this Indenture. If the aggregate principal amount (or accreted value, as applicable) of the Notes surrendered in or, if applicable, Pari Passu Indebtedness validly tendered pursuant to any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Company shall allocate the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount (or accreted value, as applicable) of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such ; provided that no Notes or other Pari Passu Indebtedness not denominated will be selected and purchased in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)an unauthorized denomination. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(gc) To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than dollarsDollars, the amount thereof payable in respect of the Notes shall not exceed the net Dollar Equivalent amount of the amount funds in Dollars that is actually received by the IssuerCompany upon converting such portion into Dollars.
(hd) The 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 Offeris 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 so far as it relates each case, from being repatriated to the NotesUnited States, the portion of such Net Available Cash so affected will remain open for a period 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 less later than 20 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 whereby 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 as a result of 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 its commencement 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 shorter period of time required to comply with Section 14(e) of the Exchange Act and any Restricted Subsidiary from all liability on such Indebtedness or other applicable securities laws or regulations liability in connection with such Asset Disposition;
(2) securities, notes or other obligations received by the Asset Disposition Offer 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 “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination extent of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”cash or Cash Equivalents received), in each case, within 180 days following the Issuer will purchase the principal amount closing of Notes andsuch 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 it electsthat 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 and 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, Pari Passu Indebtedness required to be purchased by it taken together with all other Designated Non-Cash Consideration received pursuant to this Section 4.08 3.5 that is at that time outstanding, not to exceed the greater of $100 million and 10% of LTM EBITDA (with the “Asset Disposition Offer Amount”) or, if less than fair market value of each item of Designated Non-Cash Consideration being measured at the Asset Disposition Offer Amount has been so validly tendered, all Notes time received and Pari Passu Indebtedness validly tendered without giving effect to subsequent changes in response to the Asset Disposition Offervalue).
(if) On To the extent that the provisions of any securities laws or before regulations, including Rule 14e-1 under the Asset Disposition Purchase DateExchange Act, conflict with the provisions of this Indenture, the Issuer will, Company shall not be deemed to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount have breached its obligations described in this Indenture by virtue of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereofcompliance therewith.
(jg) The Issuer will deliver provisions of this Indenture relative to the Trustee Company’s obligation to make an Officer’s Certificate stating that such offer to repurchase the Notes as a result of an Asset Disposition may be waived or portions thereof were accepted for payment by the Issuer in accordance modified with the terms written consent of this Section 4the Holders of a majority in aggregate principal amount of the Notes then outstanding.
Appears in 1 contract
Sources: Indenture
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition Disposition, unless:
(1i) the Issuer Borrower or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (including by way at the time of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) such Asset Disposition at least equal to the fair market Fair Market Value (including as to the value of all non-cash consideration) of the shares and other assets subject to such Asset Disposition (in each case, such fair market value Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and
(2ii) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 7575.0% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis thereof received by the Issuer Borrower or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash, Cash Equivalents cash or Temporary Cash Investments.
(cb) After the receipt For purposes of Net Available Cash from an Asset Dispositionclause (a)(ii) of this Section 7.5, and for no other purpose under this Agreement, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available following shall be deemed to be Temporary Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):Investments:
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase the assumption or redeem Discharge of Senior Indebtedness of the Borrower or any Indebtedness incurred under Section 4.04(b)(1Guarantor (other than obligations in respect of Disqualified Stock of the Borrower or Preferred Stock of a Guarantor) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment Indebtedness or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness Preferred Stock of a Restricted Subsidiary that is not a Guarantor and the release of the Borrower or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition;
(ii) any securities or other obligations received by the Borrower or any Indebtedness Restricted Subsidiary from the transferee that is secured on are converted by the Borrower or such Restricted Subsidiary into cash within 180 days after such Asset Disposition, to the extent of the cash received in that conversion;
(iii) the Fair Market Value of (A) any assets (other than Subordinated Indebtedness of securities) received by the Issuer or a Guarantor or Indebtedness owed to the Issuer Borrower or any Restricted SubsidiarySubsidiary to be used by it in the Related Business, (B) Capital Stock in a Person that is a Restricted Subsidiary or in a Person engaged in the Related Business that shall become a Restricted Subsidiary immediately upon the acquisition of such Person by the Borrower or any Restricted Subsidiary or (C) a combination of (A) and (B); and
(iv) to purchase any Designated Non-cash Consideration received by the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer Borrower or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and having an aggregate Fair Market Value, taken together with the Fair Market Value of all other Designated Non-cash Consideration received pursuant to this clause (iiiv) that is at that time outstanding, not greater than 7.5% of Consolidated Net Tangible Assets at the time of the receipt of such Net Available Cash; providedDesignated Non-cash Consideration, however, that any such reinvestment 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 Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenturevalue.
(dc) Any The Borrower shall apply the Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer as required by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance PortionSection 2.3(b)(iii), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (U.S. Concrete, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Following the Completion Date, the Issuer will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness); provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i4.08(c)(1), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in this Section 4.08(c)(1)(B)(i4.08(c)(1), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of any of the Issuer or any Guarantor, Issuers 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, purchase or redemption; provided that the Issuer or such Guarantorthe Co-Issuer, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes Issuers make an offer to the Holders holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of accordance with the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, provisions set forth below for an Asset Disposition Offer for an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of any of the Issuer or a Guarantor Issuers or Indebtedness owed to the Issuer or any Restricted Subsidiary); or (iv) to purchase the Notes through open-market purchases at a price equal pursuant to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07);
(2) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided provided, that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(c) hereof will be deemed to constitute “Excess Proceeds.” ”. On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2Section 4.08(c)(2) or (3Section 4.08(c)(3) of Section 4.08(c)hereof) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 25 million, the Issuer Issuers will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Guarantor the Co-Issuer, as applicable, elects, or the Issuer or a Guarantor the Co-Issuer, as applicable, is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such the Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion)Proceeds, the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(gf) To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than dollarsthe currency in which the relevant Notes are denominated, the amount thereof payable in respect of the such Notes shall not exceed the net Dollar Equivalent amount of funds in the amount currency in which such Notes are denominated that is actually received by the IssuerIssuer upon converting such portion of the Net Available Cash into such currency.
(hg) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). ): No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer Issuers will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(ih) On or before the Asset Disposition Purchase Date, the Issuer Issuers will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(ji) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this covenant. The Issuers or the Paying Agent, as the case may be, will promptly (but in any case not later than five (5) Business Days after termination of the Asset Disposition Offer Period) mail or deliver to each tendering Holder of Notes an amount equal to the purchase price of the Notes so validly tendered and not properly withdrawn by such Holder, and accepted by the Issuers for purchase, and the Issuers will promptly issue a new Note (or, in the case of Global Notes, cause the Paying Agent to reduce the aggregate principal amount and amend the applicable Global Note pursuant to Section 2.06(g) hereof and in the case of Definitive Registered Notes, deliver or cause to be delivered to the relevant Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer), and the Trustee, upon receipt of an Officer’s Certificate from the Issuer, will, via an authenticating agent, authenticate and mail or deliver (or cause to be transferred by book-entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount with a minimum denomination of $200,000. Any Note not so accepted will be promptly mailed or delivered (or transferred by book-entry) by the Issuer to the Holder thereof.
(j) For the purposes of Section 4.08(b)(2), the following will be deemed to be cash:
(1) the assumption by the transferee (or other extinguishment in connection with the transactions relating to such Asset Dispositions) of Indebtedness and any other liabilities (as recorded on the balance sheet of the Issuer or any Restricted Subsidiary or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Issuer’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereof if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Issuer) of the Issuer or any Restricted Subsidiary (other than Subordinated Indebtedness of any of the Issuers) and the release of the Issuer or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition;
(2) securities, notes or other obligations received by the Issuer or any Restricted Subsidiary from the transferee that are converted by the Issuer 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 Issuer and each other Restricted Subsidiary (as applicable) are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition;
(4) consideration consisting of Indebtedness of any of the Issuers (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Issuer or any Restricted Subsidiary; and
(5) any Designated Non-Cash Consideration received by the Issuer 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 $110 million and 1.5% of Total Assets (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).
(k) The Issuers 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 Indenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.08, the Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of any conflict.
Appears in 1 contract
Sources: Indenture (Altice USA, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1i) the Issuer Borrower or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value, as determined in good faith by the Borrower's senior management or the Board of Directors (including as to the value of all non-cash consideration), of the shares and assets subject to such Asset Disposition;
(ii) at least (A) prior to the Initial Maturity Date, 90% and (B) on or after the Initial Maturity Date, 80% of the consideration thereof received by the Borrower 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 is applied by the Borrower (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 an Officer or the Board of Directors of the Issuer, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and):
(2A) in any such Asset Dispositionfirst, or series of related Asset Dispositions (except to the extent the Asset Disposition Borrower or any Restricted Subsidiary elects (or is a Permitted Asset Swap), at least 75% required by the terms of the consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Senior Indebtedness), together with all 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 Borrower) within (I) sixty (60) days for the period prior to the Initial Maturity Date and (II) 365 days, for Asset Dispositions since occurring on or after the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer or such Restricted SubsidiaryInitial Maturity Date, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments.
(c) After the receipt of Net Available Cash from an Asset Disposition, the Issuer or a Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Issuer or such Restricted Subsidiary):
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) or the receipt of such Net Available Cash;
(B) second, for any Asset Disposition which occurs on or after the Initial Maturity Date, within 365 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 (iA), at the Borrower's election either (x) to the investment in or acquisition of Additional Assets or (y) to prepay, repayrepay 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 Borrower);
(C) third, purchase or redeem (I) for any Indebtedness incurred under Section 4.04(b)(1Asset Disposition which occurs prior to the Initial Maturity Date, within sixty (60) days after the application of Net Available Cash in accordance with clause (A) or (II) for any Guarantor IndebtednessAsset Disposition which occurs on or after the Initial Maturity Date, after the later of the application of Net Available Cash in accordance with clauses (A) and (B) and the date that is 365 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 clauses (A) and (B), to redeem the Loans and Exchange Notes at par plus accrued and unpaid interest, if any, thereon in accordance with Section 2.5(d); and
(D) fourth, for any Asset Disposition which occurs on or after the Initial Maturity Date, 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 Borrower or Indebtedness of any Restricted Subsidiary (other than Indebtedness owed to the Borrower) or (z) any other purpose otherwise permitted under this Agreement. provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(iclause (A), (B), (C) or (D), the Issuer Borrower or such Restricted Subsidiary will shall retire such Indebtedness and will shall cause the related loan commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased repaid or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of purchased. Notwithstanding the Issuer or any Guarantor, 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, purchase or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not includingforegoing provisions, the date of purchase (subject Borrower and its Restricted Subsidiaries shall not be required to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem apply any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Issuer or any Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;
(2) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (4) of Section 4.08(c), the Issuer and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(d) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed herewith except to be applied or invested as provided in Section 4.08(c) will be deemed to constitute “Excess Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 million, the Issuer will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and Net Available Cash from all Asset Dispositions which are not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds applied in accordance with this covenant exceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion1) for general corporate purposes, $2,500,000 prior to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders Initial Maturity Date and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion2) shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness$5,000,000 thereafter. For the purposes of calculating this covenant, the principal amount following will be deemed to be cash: (x) the assumption by the transferee of Senior Indebtedness of the Borrower or Indebtedness of any Restricted Subsidiary of the Borrower and the release of the Borrower or such Restricted Subsidiary from all liability on such Senior Indebtedness not denominated or Indebtedness in dollars, connection with such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offerin which case the Borrower shall, the amount of Excess Proceeds shall without further action, be reset at zero, and deemed to have applied 66 61 such assumed Indebtedness in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
accordance with clause (gA) 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 Dollar Equivalent of the amount that is actually preceding paragraph) and (y) securities received by the Issuer.
(h) The Asset Disposition Offer, in so far as it relates to Borrower or any Restricted Subsidiary of the Notes, will remain open for a period of not less than 20 Business Days following its commencement Borrower from the transferee that are promptly converted by the Borrower or such shorter period of time required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition OfferRestricted Subsidiary into cash.
(i) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness 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 Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.
Appears in 1 contract
Sources: Senior Subordinated Credit Agreement (Federal Mogul Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) [Reserved].
(b) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer 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 an Officer or the Board of Directors (including as to the value of the Issuerall non-cash consideration), of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap)Disposition; and
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the aggregate consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the Issuer Company or such Restricted Subsidiary, as the case may be, from such Asset Disposition and all other Asset Dispositions since the Issue Date, on a cumulative basis, is in the form of cash, cash or Cash Equivalents or Temporary Cash InvestmentsAdditional Assets, or any combination thereof.
(cb) After the receipt Within 365 days of Net Available Cash from completion of an Asset Disposition, the Issuer Company or a Restricted Subsidiary, as the case may be, Subsidiary may apply such any Net Available Cash directly or indirectly (at the option of the Issuer or from such Restricted Subsidiary):Asset Disposition:
(1) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any Indebtedness incurred under Section 4.04(b)(1) or any Guarantor Indebtedness; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.08(c)(1)(B)(i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(c)(1)(B)(i), to prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer Company (other than any Disqualified Stock or any Guarantor, 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, purchase Subordinated Obligations) or redemption; provided that the Issuer or such Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer or such Guarantor purchases through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but not including, 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) for, in each case, an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; (iii) to prepay, repay, purchase or redeem any Indebtedness of a Restricted Subsidiary that is not a Guarantor or any Indebtedness that is secured on assets (other than any Disqualified Stock or Guarantor Subordinated Indebtedness Obligation of the Issuer or a Guarantor or Subsidiary Guarantor) (in each case other than Indebtedness owed to the Issuer Company or any a Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, 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) or (v) to redeem the Notes as described under Section 3.07;or
(2) to the extent the Issuer or such Restricted Subsidiary elects, to invest in or purchase or commit to invest in or purchase acquire Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within 365 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment or commitment to invest is consummated within 180 days of such 365th day;
(3) to make a capital expenditure within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; or
(4) any combination of clauses (1) through (3) of Section 4.08(c), provided that, pending Assets. Pending the final application of any such Net Available Cash in accordance with clauses (1), (2), (3) or (42) of Section 4.08(c)above, the Issuer Company and the its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(dc) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 4.08(cclause (b) above will be deemed to constitute “Excess Proceeds.” On Not later than the 366th day (or the 546th day, in the case of any Net Available Cash committed to be used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of the Issuer pursuant to clause (2) or (3) of Section 4.08(c)) after the later of (A) the date of such an Asset Disposition and (B) or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $100 20.0 million, the Issuer Company will be required within ten (10) Business Days thereof to make an offer (“Asset Disposition Offer”) to all holders Holders of the Notes and, Securities and to the extent the Issuer or a Guarantor elects, or the Issuer or a Guarantor is required by the terms of other outstanding Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Securities”), to purchase the maximum principal amount of such Notes Securities and any such Pari Passu Indebtedness Securities to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes cash in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of such Notes the Securities and 100% of the principal amount of Pari Passu Indebtedness, in each case, Securities plus accrued and unpaid interest, if any, to, but not including, interest to the date of purchasepurchase (subject to the right of holders 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 or the agreements governing the Pari Passu IndebtednessSecurities, as applicable, and in the each case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof1,000. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).
(e) [Reserved].
(f) To the extent that the aggregate amount of Notes Securities and Pari Passu Indebtedness Securities so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), the Issuer and the Restricted Subsidiaries Company may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for general corporate purposes, subject to the extent not prohibited by the other covenants contained in this Indenture. If the aggregate principal amount of the Notes Securities surrendered in any Asset Disposition Offer by Holders thereof and other Pari Passu Indebtedness Securities surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds (or, in the case of an Advance OfferProceeds, the Advance Portion), Trustee shall select the Excess Proceeds (or, in Securities for which it is Trustee and the case of an Advance Offer, the Advance Portion) Company shall be allocated among the Notes and select any other Pari Passu Indebtedness Securities to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes Securities and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in dollars, such Indebtedness shall be calculated by converting any such principal amounts into their Dollar Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below)Securities. Upon completion of any such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.
(g) 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 Dollar Equivalent of the amount that is actually received by the Issuer.
(hd) The Asset Disposition Offer, in so far as it relates to the Notes, Offer will remain open for a period of not less than 20 Business Days following its commencement or such shorter commencement, except to the extent that a longer period of time is required to comply with Section 14(e) of the Exchange Act and any other by applicable securities laws or regulations in connection with the Asset Disposition Offer law (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer Company will purchase the principal amount of Notes and, to the extent it elects, Securities and Pari Passu Indebtedness Securities required to be purchased by it pursuant to this Section 4.08 3.7 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes Securities and Pari Passu Indebtedness Securities validly tendered in response to the Asset Disposition Offer.
(i) . 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 of the Securities who tender Securities pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Issuer Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes Securities and Pari Passu Indebtedness Securities or portions of Notes Securities and Pari Passu Indebtedness Securities 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 Notes Securities and Pari Passu Indebtedness Securities so validly tendered and not properly withdrawn andwithdrawn, in the each case of the Notes, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(j) 1,000. The Issuer Company will deliver to the Trustee an Officer’s Officers’ Certificate stating that such Notes Securities or portions thereof were accepted for payment by the Issuer Company in accordance with the terms of this Section 43.7 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Securities. The Company will promptly (but in any case not later than five Business Days after the termination of the Asset Disposition Offer Period) mail or deliver to each tendering Holder of Securities or holder or lender of Pari Passu Securities, as the case may be, an amount equal to the purchase price of the Securities or Pari Passu Securities so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Security, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such 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 $2,000 or an integral multiple of $1,000. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Securities. Any Security not so accepted will be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date. For the purposes of clause (a)(2) 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 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 clause (b)(1) above); 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. The Company will comply, to the extent applicable, with the requirements of Section 14e-1 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 of any conflict.
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