Limitation on Sales of Assets and Subsidiary Stock. The Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless: (1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition; (2) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash: (a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability; (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and (c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition: (a) first, is applied by the Company or such Restricted Subsidiary, as the case may be, (i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or (ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and (b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15; (2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date; (3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date; (5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased; (6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date; (7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased; (8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased); (9) 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 transfer); and (10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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 2 contracts
Sources: Indenture (Davita Inc), Indenture (Davita Inc)
Limitation on Sales of Assets and Subsidiary Stock. The Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non non-cash) equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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 2 contracts
Sources: Indenture (Physicians Management, LLC), Indenture (Physicians Management, LLC)
Limitation on Sales of Assets and Subsidiary Stock. The Company (a) Holdings will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition of Collateral unless:
(1i) the Company Holdings or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) at least equal to not less than 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 Holdings’ management, or if such Asset Disposition involves consideration in excess of $10.0 million, by a resolution of the shares and assets Board of Directors set forth in an Officers’ Certificate delivered to the Trustee (including as to the value of all non-cash consideration), of the Collateral subject to such Asset Disposition;
(2ii) at least 75% of the consideration from such Asset Disposition received by the Company Holdings or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents and 100% of the portion of the Net Proceeds from Asset Dispositions relating to the First Priority Collateral in excess of $5.0 million in the aggregate (to the extent not applied or Replacement Assetsinvested as provided below) is deposited directly into the Collateral Account or becomes the subject of a Net Proceeds Letter of Credit promptly upon the receipt of such Net Proceeds; and
(iii) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as the First Priority Collateral to secure the Notes, in the case of an Asset Disposition of the First Priority Collateral, or as ABL Collateral, in the case of an Asset Disposition of ABL Collateral. For purposes of this clause (2)ii) of the preceding paragraph, each of the following shall be deemed to be cash:
: (a) any liabilities (as shown on the face repayment or assumption of Indebtedness secured by Liens with a priority senior or equal to the Liens in favor of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of Notes and the Company or any Restricted Subsidiary (other than contingent liabilities Note Guarantees and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company Holdings or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) are, within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received the disposition of Collateral, converted by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company Holdings’ or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid into cash or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) secondCash Equivalents, to the extent of the balance cash or Cash Equivalents received in that conversion. Any Net Proceeds from any Asset Dispositions of First Priority Collateral deposited into the Collateral Account or the subject of a Net Proceeds Letter of Credit may be invested by the Company or a Guarantor in Additional Assets constituting First Priority Collateral (including, without limitation, through capital expenditures in domestic assets constituting First Priority Collateral) within 360 days of the date of the receipt of any Net Proceeds from such Asset Disposition, which Additional Assets are thereupon with their acquisition added to the First Priority Collateral securing the Notes; provided that a binding commitment entered into with such 360-day period shall be treated as a permitted application of the Net Available Cash after Proceeds so long as such Net Proceeds shall be applied to satisfy such commitment within 180 days of the date of such commitment; provided further that Additional Assets shall not include the Capital Stock of Foreign Subsidiaries for purposes of this requirement unless the relevant Asset Disposition consisted of the sale of the Capital Stock of a Foreign Subsidiary. All of the Net Proceeds received from any Recovery Event in respect of First Priority Collateral shall be deposited directly into the Collateral Account or become the subject of a Net Proceeds Letter of Credit promptly upon the receipt of such Net Proceeds and may be invested by the Company or a Guarantor in Additional Assets constituting First Priority Collateral (which may include performance of a restoration of the affected Collateral) within 360 days of the date of the receipt of any Net Proceeds from such Recovery Event, which Additional Assets are thereupon with their acquisition added to the First Priority Collateral securing the Notes; provided that a binding commitment entered into with such 360-day period shall be treated as a permitted application of the Net Proceeds so long as such Net Proceeds shall be applied to satisfy such commitment within 180 days of the date of such commitment; provided further that (x) the Company shall not be required to deposit in accordance with the Collateral Account or make the subject of a Net Proceeds Letter of Credit Net Proceeds in an aggregate amount of $2.0 million or less and (ay) above (such balanceAdditional Assets shall not include the Capital Stock of Foreign Subsidiaries for purposes of this requirement, “Excess Proceeds”)unless the relevant Recovery Event involved the Capital Stock of a Foreign Subsidiary. Any Net Proceeds from Asset Dispositions of Collateral or Recovery Events deposited into the Collateral Account may be withdrawn, is and any Net Proceeds Letter of Credit may be reduced and/or terminated, in each case, in the amount to be invested or applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash a Guarantor in accordance with clause this Indenture. Any Net Proceeds from Asset Dispositions of Collateral or Recovery Events that are not deposited (or made subject to a Net Proceeds Letter of Credit), applied or invested as provided in this subsection (a) within the applicable timeframe or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if Collateral Documents will be deemed to constitute “Excess Collateral Proceeds.” When the aggregate amount of Excess Collateral Proceeds exceeds $50.0 5.0 million, within 15 days thereof, the Company will be required to make an offer (“Asset Collateral Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to and all holders of other Senior Pari Passu Lien Indebtedness outstanding containing provisions similar to those set forth in this Indenture with similar provisions requiring the Company respect to make an offer offers to purchase such Senior Indebtedness or redeem with the proceeds from any Asset Disposition (“Pari Passu Notes”) of sales of Collateral to purchase the maximum principal amount of the Notes and any such Pari Passu Notes Lien Indebtedness (on a pro rata basis) to which the Asset Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes Notes, plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or in this Indenture; provided, that to the agreements governing extent the Pari Passu NotesExcess Collateral Proceeds relate to Asset Dispositions of ABL Collateral, as applicablethe Company may, in each case in integral multiples of $1,000 in prior to making a Collateral Disposition Offer, make a prepayment with respect to the maximum principal amount (provided of Indebtedness and Obligations that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as is secured by ABL Collateral on a first-priority basis that may be specified prepaid out of such Excess Collateral Proceeds, at a price in cash in an amount equal to 100% of the agreements governing principal amount of such Indebtedness and Obligations, plus accrued and unpaid interest, to the Pari Passu Notesdate of prepayment, with any Excess Collateral Proceeds not used to prepay such Indebtedness offered to Holders in accordance with this paragraph. To the extent that the aggregate amount of Notes and other Pari Passu Notes Lien Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset a Collateral Disposition Offer is less than the Excess ProceedsCollateral Proceeds (after giving effect to the prepayment of Indebtedness secured on a first-priority basis in the case of an Asset Disposition of ABL Collateral), the Company may use any remaining Excess Collateral Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. If the aggregate principal amount of Notes surrendered by Holders and Pari Passu Notes validly Lien Indebtedness tendered and not properly withdrawn pursuant to such Collateral Disposition Offer exceeds the amount of Excess Collateral Proceeds, the Notes and Pari Passu Lien Indebtedness to be purchased shall be selected on a pro rata basis. Upon completion of such Collateral Disposition Offer, the amount of Excess Collateral Proceeds shall be reset at zero.
(b) Holdings will not, and will not permit any Restricted Subsidiary to, make any Asset Disposition (other than Asset Dispositions of Collateral which shall be treated in the manner set forth in paragraph (a) above) unless:
(1) Holdings (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Disposition at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) at least 75% of the consideration received in the Asset Disposition by Holdings or such Restricted Subsidiary is in the form of cash. For purposes of this provision, each of the following will be deemed to be cash:
(a) Cash Equivalents;
(b) any liabilities, as shown on Holdings’ most recent consolidated balance sheet, of Holdings or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases Holdings or such Restricted Subsidiary from further liability; and
(c) any securities, notes or other obligations received by Holdings or any such Restricted Subsidiary from such transferee that are, within 180 days of the closing of such Asset Disposition, converted by Holdings or such Restricted Subsidiary into cash or Cash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion. Within 360 days after the receipt of any Net Proceeds from an Asset Disposition subject to this Section 3.5(b), Holdings (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option:
(1) to repay Senior Debt (and to correspondingly reduce commitments with respect thereto) and Indebtedness of the applicable Restricted Subsidiary of Holdings, other than Indebtedness owed to Holdings or another Restricted Subsidiary;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of Holdings;
(3) to make capital expenditures; or
(4) to acquire other assets that are used or useful in a Permitted Business. provided that, in the case of clauses (2), (3) and (4) above, a binding commitment entered into with such 360-day period shall be treated as a permitted application of the Net Proceeds so long as such Net Proceeds shall be applied to satisfy such commitment within 180 days of the date of such commitment. Pending the final application of any Net Proceeds, Holdings may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Dispositions that are not applied or invested as provided above will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $15.0 million, within 15 days thereof, the Company will make an offer (“Asset Disposition Offer”) to all Holders and all holders of other Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness”) containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other Pari Passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Disposition Offer will be equal to 100% of the principal amount of the Notes plus accrued and unpaid interest and Special Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Disposition Offer, Holdings may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other Pari Passu Indebtedness tendered pursuant to such Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and the holders, trustees or similar representatives, as the case may be, of such other Pari Passu Notes shall select the Pari Passu Notes Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notesbasis. Upon completion of such each Asset Disposition Offer, the amount of Excess Proceeds shall will be reset at zero. Each .
(c) The Collateral Disposition Offer or Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and other Indebtedness required to be purchased pursuant to Section 3.5(a) and Pari Passu Notes Indebtedness required to be purchased pursuant to this Section 4.15 3.5(b) (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes (and other Indebtedness required to be purchased pursuant to the last paragraph of Section 3.5(a)) and Pari Passu Notes Indebtedness, if applicable, validly tendered in response to the Collateral Disposition Offer or Asset Disposition Offer, as applicable. 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 on such Asset Disposition Purchase Date 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 Collateral Disposition Offer or Asset Disposition Offer. Upon the commencement of an a Collateral Disposition Offer or Asset Disposition Offer, as applicable, the Company shall will send, by first class mail, a notice to the Trustee and to each Holder at its registered addressof the Holders of the Notes. The notice shall will contain all instructions and materials necessary to enable such Holder Holders to tender Notes pursuant to the Collateral Disposition Offer or Asset Disposition Offer. Any Asset Disposition Offer shall be made to all Holders, as applicable. The notice, which shall will govern the terms of the Collateral Disposition Offer or Asset Disposition Offer, shall as applicable, will state:
(1) that the Collateral Disposition Offer or Asset Disposition Offer is being made pursuant to this Section 4.153.5 and the length of time the Collateral Disposition Offer or Asset Disposition Offer will remain open;
(2) the Asset Disposition Offer Amount Amount, the purchase price and the Asset Disposition Purchase Date;
(3) that any Notes Security not tendered or accepted for payment shall will continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes Note accepted for payment pursuant to the Collateral Disposition Offer or Asset Disposition Offer shall will cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the a Collateral Disposition Offer or Asset Disposition Offer Offer, as applicable, may only elect to have all Notes purchased in denominations of such Note purchased and may not elect to have only a portion $2,000 or integral multiples of such Note purchased$1,000 in excess thereof only;
(6) that Holders electing to have a Note purchased pursuant to any Collateral Disposition Offer or Asset Disposition Offer shall Offer, as applicable, will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on attached to the reverse of the Notes Note completed, or transfer its interest in such Security by book-entry transfer, to the Company, Company or a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days Business Days before the Asset Disposition Purchase Date;
(7) that Holders shall will be entitled to withdraw their election if the Company, the Depository Company or the Paying Agent, as the case may be, receives, not later than the second business day prior to expiration of the Asset Disposition Purchase DateOffer Period, a notice telegram, telex, facsimile transmission or letter 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes and, if applicable, other Indebtedness required to be purchased pursuant to the last paragraph of Section 3.5(a) and other Pari Passu Indebtedness surrendered by the Holders thereof exceeds the Asset Disposition Offer Amount, the Company shall will select the Notes and, if applicable, such other Indebtedness and Pari Passu Indebtedness to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by based on the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all Securities and such other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 Indebtedness and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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.Indeb
Appears in 2 contracts
Sources: Indenture (Edgen Group Inc.), Indenture (Edgen Murray II, L.P.)
Limitation on Sales of Assets and Subsidiary Stock. The Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), ) to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such any Restricted Subsidiary Subsidiary, as the case may be, elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (an “Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) to purchase the maximum principal amount of such Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of such Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the portions of such Excess Proceeds to be applied to purchase such tendered Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select be determined by the Pari Passu Notes to be purchased Company on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes (subject to such adjustments as the Company in its sole discretion shall deem appropriate so that Notes are purchased in integral multiples of $1,000 in principal amount and the unpurchased portion of any Note shall not be less than $2,000 in principal amount and so that, in the case of Pari Passu Notes issued in authorized denominations, such Pari Passu Notes are purchased only in authorized denominations and the unrepurchased portion of any such Pari Passu Note shall also be an authorized denomination) and in such case the specific Notes to be purchased shall be selected, in the case of Global Notes, in accordance with the applicable procedures of the Depository (and, if permitted under such procedures, on a pro rata basis on the basis the aggregate principal amount of such Notes) and, in the case of Notes that are not Global Notes, by the Trustee on a pro rata basis on the basis of the aggregate principal amount of such Notes (and in each case subject to such adjustments as shall be necessary so that Notes are purchased in integral multiples of $1,000 in principal amount and the unrepurchased portion of any Note shall not be less than $2,000 in principal amount), and the selection of the specific Pari Passu Notes to be purchased shall be made pursuant to the terms of such Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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 2 contracts
Sources: Indenture (Davita Healthcare Partners Inc.), Indenture (Physicians Choice Dialysis, LLC)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cashincluding by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to not less than the Fair Market Value fair market value (such ▇▇▇▇ ▇▇▇▇▇▇ 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 or the relevant Restricted Subsidiary, of the shares and assets subject to such Asset DispositionDisposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap);
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness) received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or cash, Cash Equivalents or Replacement AssetsTemporary Cash Investments; and
(3) (A) in respect of Asset Dispositions in any Non-Core Market, the aggregate 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, 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 of each of (A) and (B), the amount of Asset Dispositions by a Majority Co-Investment Vehicle or a Fund Co-Investment Vehicle or any Restricted Subsidiary thereof shall be equal to the product of (i) the aggregate amount of the net proceeds of the Asset Disposition and (ii) the direct or indirect proportionate economic interest of Midco in such Majority Co-Investment Vehicle or Fund Co-Investment Vehicle or a Subsidiary thereof which is a Restricted Subsidiary. For purposes of determining compliance with the provisions of this clause Section 4.07, the euro equivalent of any Indebtedness denominated in another currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred.
(2b) [Reserved].
(c) [Reserved].
(d) To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than the currency in which the relevant Notes are denominated, the amount thereof payable in respect of such Notes shall not exceed the net amount of funds in the currency in which such Notes are denominated that is actually received by the Issuer upon converting such portion into such currency.
(e) [Reserved].
(f) [Reserved].
(g) For the purposes of Section 4.07(a)(2), each of the following shall will be deemed to be cash:
(a1) any liabilities (as shown on the face assumption by the transferee of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), Indebtedness of the Company or any Indebtedness of a Restricted Subsidiary (other than contingent liabilities Subordinated Indebtedness of the Issuer or a Guarantor) and Subordinated Obligations) that are assumed by the transferee release of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liabilityall liability on such Indebtedness in connection with such Asset Disposition;
(b2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary of the Company from such the transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) or Cash Equivalents within 180 days of following the closing of such Asset Disposition; and;
(c3) 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 Noncash Non-Cash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition Dispositions having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)fair market value, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (c) Section 4.07 that is at that time outstanding, not to exceed $100.0 million the greater of €[•] and 1.5% of Total Assets (with the Fair Market Value fair market value of each item of Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(36) an amount equal to 100% of the Net Available Cash from such Asset Disposition:any Capital Stock or Additional Assets.
(ah) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company Issuer will comply, to the extent applicable, with the requirements of Rule 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 repurchase of Notes pursuant to this Section 4.15Indenture. To the extent that the provisions of any securities laws or regulations (or exchange rules) conflict with provisions of this Section 4.154.07, the Company Issuer 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 2 contracts
Sources: Indenture (Intrum ZRT), Indenture (Intrum ZRT)
Limitation on Sales of Assets and Subsidiary Stock. The Company will not, and will not permit any of its Restricted Subsidiaries to, make directly or indirectly, consummate any Asset Disposition unless:
(1) the Company or such a Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cash) at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on measured as of the date of contractually agreeing the definitive agreement with respect to such Asset Disposition) ), of the shares assets and assets subject Equity Interests issued or sold pursuant to such Asset Disposition;
(2) at least 75% of the aggregate consideration from such Asset Disposition received by the Company or such its Restricted Subsidiary, as Subsidiaries in the case may be, Asset Disposition and all other Asset Dispositions since the Issue Date is in the form of cash or Temporary Cash Equivalents Investments, Additional Assets or Replacement Assets. For purposes of this clause any combination thereof (2collectively, the “Cash Consideration”), ; provided that each of the following shall will be deemed to be cash:
(a) any liabilities (liabilities, as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent consolidated balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligationsliabilities that are by their terms subordinated to the Securities or any Subsidiary Guarantee) that are assumed assumed, forgiven or otherwise extinguished by the transferee of any such assets pursuant to a customary novation by written agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(b) with respect to any Asset Disposition of Oil and Gas Properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(c) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such the transferee that are are, within 180 days of the Asset Disposition, converted by the Company or such Restricted Subsidiary into cash (cash, to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(cd) any Designated Noncash Non-Cash Consideration received by the Company or any such Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)Value, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (c) that is at that time outstandingd), not to exceed $100.0 million an amount equal to 7.5% of the Company’s ACNTA (determined at the time of receipt of such Designated Non-Cash Consideration), with the Fair Market Value of each item of Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company (or such a Restricted Subsidiary, as the case may be,) within 365 days to:
(ia) prepay, repay, redeem or purchase any Senior Debt;
(b) acquire Additional Assets; or
(c) make capital expenditures in a Permitted Business. The requirement of clauses (3)(b) and (3)(c) of the preceding paragraph of this Section 3.5 shall be deemed to be satisfied if a bona fide binding contract committing to make the extent investment, acquisition or expenditure referred to therein is entered into by the Company (or any Restricted Subsidiary of the Company) with a Person other than a Restricted Subsidiary of the Company within the time period specified in the preceding paragraph and such Net Available Cash is subsequently applied in accordance with such contract within six months following the date such agreement is entered into. Pending application of Net Available Cash pursuant to this Section 3.5, the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness Subsidiary of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of may apply the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of temporarily reducing Indebtedness under any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness Credit Facility or otherwise invest such the Net Available Cash in any manner that is not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board The amount of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash not applied or invested as provided above will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds equals or exceeds $50.0 million, the Company will be required to shall make an offer to purchase Securities and other Pari Passu Indebtedness of the Company (an “Asset Disposition Offer”) within 30 days, and shall purchase Securities tendered pursuant to all Holders of Notes and, to the extent required an Offer by the terms of Company for the Securities (and such other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out Indebtedness of the Excess Proceeds, Company) at an offer a purchase price in cash in an amount equal to of 100% of the their principal amount of the Notes and Pari Passu Notes without premium, plus accrued and but unpaid interest to to, but not including, the date of purchase, subject to the right of Holders of record on the relevant record date to receive interest on the relevant interest payment date (or, in respect of such other Pari Passu Indebtedness of the Company, such lesser price, if any, as may be provided for by the terms of such Pari Passu Indebtedness of the Company) in accordance with the procedures (including prorating in the event of oversubscription) set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained below in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu NotesSection 3.5. Upon completion of such an Asset Disposition Offer, the amount of Excess Proceeds shall will be deemed to be reset at to zero. Each The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes Securities and Pari Passu Notes Indebtedness required to be purchased pursuant to this Section 4.15 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 Notes Indebtedness validly tendered and not properly withdrawn in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Dateinterest payment date, any accrued and unpaid interest interest, if any, will be paid to the Person in whose name a Note Security is registered at the close of business on such record date, and no additional further interest will be payable to Holders who tender Notes Securities pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, to the extent necessary on a pro rata basis to (except that any Securities represented by a Security in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the extent necessaryTrustee, a method that most nearly approximates pro rata selection, unless otherwise required by law), the Asset Disposition Offer Amount of Notes Securities and Pari Passu Notes Indebtedness or portions of such Notes Securities and Pari Passu Notes 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 Securities and Pari Passu Notes Indebtedness so validly tendered and not properly withdrawn, in each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000; provided that if, following the repurchase of a portion of a Security, the remaining principal amount (provided that the unpurchased portion of any Note shall not such Security outstanding immediately after such repurchase would be less than $2,000 in 2,000, then the portion of such Security so repurchased shall be reduced such that the remaining principal amount) or, in the case amount of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing Security outstanding immediately after such Pari Passu Notesrepurchase is $2,000. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes Securities or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 3.5 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu NotesIndebtedness. The Company or the Paying Agentpaying 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 otherwise deliver in accordance with the applicable procedures of DTC) to each tendering Holder of Notes Securities or holder or lender of Pari Passu NotesIndebtedness, as the case may be, an amount equal to the purchase price of the Notes Securities or Pari Passu Notes Indebtedness 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 NoteSecurity, and the Trustee, upon delivery of an Officers’ Certificate authentication order from the Company, will authenticate and mail or deliver such new Note Security to such Holder, in a principal amount equal to any unpurchased portion of the Note Security surrendered; provided that each such new Note Security will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess thereofof $2,000. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu NotesIndebtedness. Any Note 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 or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will comply, to the extent applicable, with the requirements of Rule 14(e) 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes Securities pursuant to this Section 4.15an Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.153.5, 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 conflictits compliance with such securities laws or regulations.
Appears in 2 contracts
Sources: Indenture (CNX Resources Corp), Indenture (CNX Resources Corp)
Limitation on Sales of Assets and Subsidiary Stock. The Company will not, and will not permit any of its Restricted Subsidiaries to, make directly or indirectly, consummate any Asset Disposition unless:
(1) the Company or such a Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cash) at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on measured as of the date of contractually agreeing the definitive agreement with respect to such Asset Disposition) ), of the shares assets and assets subject Equity Interests issued or sold pursuant to such Asset Disposition;
(2) at least 75% of the aggregate consideration from such Asset Disposition received by the Company or such its Restricted Subsidiary, as Subsidiaries in the case may be, Asset Disposition and all other Asset Dispositions since the Issue Date is in the form of cash or Temporary Cash Equivalents Investments, Additional Assets or Replacement Assets. For purposes of this clause any combination thereof (2collectively, the “Cash Consideration”), ; provided that each of the following shall will be deemed to be cash:
(a) any liabilities (liabilities, as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent consolidated balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligationsliabilities that are by their terms subordinated to the Securities or any Subsidiary Guarantee) that are assumed assumed, forgiven or otherwise extinguished by the transferee of any such assets pursuant to a customary novation by written agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(b) with respect to any Asset Disposition of Oil and Gas Properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(c) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such the transferee that are are, within 180 days of the Asset Disposition, converted by the Company or such Restricted Subsidiary into cash (cash, to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(cd) any Designated Noncash Non-Cash Consideration received by the Company or any such Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)Value, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (c) that is at that time outstandingd), not to exceed $100.0 million an amount equal to 7.5% of the Company’s ACNTA (determined at the time of receipt of such Designated Non-Cash Consideration), with the Fair Market Value of each item of Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company (or such a Restricted Subsidiary, as the case may be,) within 365 days to:
(ia) prepay, repay, redeem or purchase any Senior Debt;
(b) acquire Additional Assets; or
(c) make capital expenditures in a Permitted Business. The requirement of clauses (3)(b) and (3)(c) of the preceding paragraph of this Section 3.5 shall be deemed to be satisfied if a bona fide binding contract committing to make the extent investment, acquisition or expenditure referred to therein is entered into by the Company (or any Restricted Subsidiary of the Company) with a Person other than a Restricted Subsidiary of the Company within the time period specified in the preceding paragraph and such Net Available Cash is subsequently applied in accordance with such contract within six months following the date such agreement is entered into. Pending application of Net Available Cash pursuant to this Section 3.5, the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness Subsidiary of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of may apply the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of temporarily reducing Indebtedness under any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness Credit Facility or otherwise invest such the Net Available Cash in any manner that is not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board The amount of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash not applied or invested as provided above will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds equals or exceeds $50.0 million, the Company will be required to shall make an offer to purchase Securities and other Pari Passu Indebtedness of the Company (an “Asset Disposition Offer”) within 30 days, and shall purchase Securities tendered pursuant to all Holders of Notes and, to the extent required an Offer by the terms of Company for the Securities (and such other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out Indebtedness of the Excess Proceeds, Company) at an offer a purchase price in cash in an amount equal to of 100% of the their principal amount of the Notes and Pari Passu Notes without premium, plus accrued and but unpaid interest to to, but not including, the date of purchase, subject to the right of Holders of record on the relevant record date to receive interest on the relevant interest payment date (or, in respect of such other Pari Passu Indebtedness of the Company, such lesser price, if any, as may be provided for by the terms of such Pari Passu Indebtedness of the Company) in accordance with the procedures (including prorating in the event of oversubscription) set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained below in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu NotesSection 3.5. Upon completion of such an Asset Disposition Offer, the amount of Excess Proceeds shall will be deemed to be reset at to zero. Each The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes Securities and Pari Passu Notes Indebtedness required to be purchased pursuant to this Section 4.15 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 Notes Indebtedness validly tendered and not properly withdrawn in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Dateinterest payment date, any accrued and unpaid interest interest, if any, will be paid to the Person in whose name a Note Security is registered at the close of business on such record date, and no additional further interest will be payable to Holders who tender Notes Securities pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, to the extent necessary on a pro rata basis to (except that any Securities represented by a Security in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the extent necessaryTrustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), the Asset Disposition Offer Amount of Notes Securities and Pari Passu Notes Indebtedness or portions of such Notes Securities and Pari Passu Notes 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 Securities and Pari Passu Notes Indebtedness so validly tendered and not properly withdrawn, in each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000; provided that if, following the repurchase of a portion of a Security, the remaining principal amount (provided that the unpurchased portion of any Note shall not such Security outstanding immediately after such repurchase would be less than $2,000 in 2,000, then the portion of such Security so repurchased shall be reduced such that the remaining principal amount) or, in the case amount of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing Security outstanding immediately after such Pari Passu Notesrepurchase is $2,000. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes Securities or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 3.5 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu NotesIndebtedness. The Company or the Paying Agentpaying 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 otherwise deliver in accordance with the applicable procedures of DTC) to each tendering Holder of Notes Securities or holder or lender of Pari Passu NotesIndebtedness, as the case may be, an amount equal to the purchase price of the Notes Securities or Pari Passu Notes Indebtedness 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 NoteSecurity, and the Trustee, upon delivery of an Officers’ Certificate authentication order from the Company, will authenticate and mail or deliver such new Note Security to such Holder, in a principal amount equal to any unpurchased portion of the Note Security surrendered; provided that each such new Note Security will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess thereofof $2,000. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu NotesIndebtedness. Any Note 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 or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will comply, to the extent applicable, with the requirements of Rule 14(e) 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes Securities pursuant to this Section 4.15an Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.153.5, 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 conflictits compliance with such securities laws or regulations.
Appears in 2 contracts
Sources: Indenture (CNX Resources Corp), Indenture (CNX Resources Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company Parent will not, and will not permit the Issuer or any of its other Restricted Subsidiaries Subsidiary to, make consummate any Asset Disposition unless:
(1i) the Company consideration the Parent, the Issuer or such other Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cash) equal to for such Asset Disposition is not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on fair market value of the assets disposed of as of the date of contractually agreeing to entry into binding documentation in respect of such Asset Disposition) Disposition (as determined by the Parent’s Board of the shares and assets subject to such Asset Disposition;Directors); and
(2ii) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company Parent or such Restricted Subsidiary from further liability;receives in respect of such Asset Disposition consists of:
(bA) cash (including any Net Cash Proceeds received from the conversion within 180 days of such Asset Disposition of securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing consideration of such Asset Disposition; and);
(cB) Cash Equivalents;
(C) the assumption by the purchaser of (x) any liabilities recorded on the Parent’s, the Issuer’s or such other Restricted Subsidiary’s balance sheet or the notes thereto (or, if Incurred since the date of the latest balance sheet, that would be recorded on the next balance sheet) (other than Subordinated Indebtedness), as a result of which none of the Parent, the Issuer or any of the other Restricted Subsidiaries remains obligated in respect of such liabilities, or (y) Indebtedness of a Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, if the Parent, the Issuer and every other Restricted Subsidiary is released from any guarantee of such Indebtedness as a result of such Asset Disposition;
(D) Replacement Assets;
(E) any Capital Stock or assets of the kind referred to in clause (iv) or (vi) of Section 4.05(b);
(F) consideration consisting of Indebtedness of the Issuer or any Guarantor received from Persons who are not the Parent, the Issuer or any other Restricted Subsidiary, but only to the extent that such Indebtedness (i) has been extinguished by the Issuer or the applicable Guarantor, and (ii) is not Subordinated Indebtedness of the Issuer or such Guarantor;
(G) any Designated Noncash Non-Cash Consideration received by the Company Parent or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)fair market value, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (c) covenant that is at that any one time outstanding, not to exceed the greater of 15% of Consolidated EBITDA and $100.0 150 million (with the Fair Market Value fair market value of each item issue of Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value); andor
(3H) any combination of the types of consideration specified in the preceding clauses (ii)(A) through (ii)(G).
(b) If the Parent, the Issuer or any other Restricted Subsidiary consummates an Asset Disposition, within 360 days (or such period as provided in clause (viii) below, if applicable) of the later of the date of consummation of such Asset Disposition and receipt of such Net Available Cash, the Parent or its Restricted Subsidiaries may use the Net Available Cash to:
(i) (a) prepay, repay, purchase or redeem (including through open market purchases, voluntary tender offers or privately negotiated transactions at market prices) any Senior Indebtedness Incurred under Section 4.01(b)(i); (b) unless included in the preceding clause (i)(a), prepay, repay, purchase or redeem (including through open market purchases, voluntary tender offers or privately negotiated transactions at market prices) any Pari Passu Indebtedness; provided that the Parent, and its Restricted Subsidiaries shall be entitled to prepay, repay, purchase or redeem such Pari Passu Indebtedness that constitutes Public Debt and that has a Stated Maturity falling before the Notes’ Stated Maturity only if the Parent or the Issuer makes (at such time or in compliance with this covenant) an offer to Holders to purchase Notes, in accordance with the provisions set forth below for an Asset Disposition Offer, in such an amount equal as would reduce the aggregate principal amount of Notes then outstanding in the same proportion as the aggregate principal amount of such other Pari Passu Indebtedness would be reduced by such prepayments, repayments, purchases or redemptions; or (c) prepay, repay, purchase or redeem (including through open market purchases, voluntary tender offers or privately negotiated transactions at market prices) any Indebtedness of a Restricted Subsidiary of the Parent that is not a Guarantor (other than the Issuer) or any Indebtedness that is secured on assets that do not constitute Collateral (in each case, other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to 100% the Parent or any Restricted Subsidiary);
(ii) purchase any series of Notes pursuant to an offer to all Holders of such series of Notes, redeem (including through open market purchases, voluntary tender offers or privately negotiated transactions at market prices) any series of Notes pursuant to the redemption provisions of this Indenture or by making an Asset Disposition Offer to all Holders of the Notes (in accordance with the procedures set out below);
(iii) invest in any Replacement Assets;
(iv) acquire all or substantially all of the assets of, or any Capital Stock of, another Person engaged in a Similar Business, if, after giving effect to any such acquisition of Capital Stock, such Person is or becomes a Restricted Subsidiary;
(v) make a capital expenditure;
(vi) acquire other assets (other than Capital Stock and cash or Cash Equivalents) that are used or useful in a Similar Business;
(vii) consummate any combination of the foregoing; or
(viii) enter into a binding commitment to apply the Net Available Cash pursuant to Section 4.05(b)(i), Section 4.05(b)(iii), Section 4.05(b)(iv), Section 4.05(b)(v) or Section 4.05(b)(vi) or a combination thereof; provided that, a binding commitment shall be treated as a permitted application of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition commitment until the earlier of (x) the date on which such investment is consummated, and (y) the 180th day following the expiration of the aforementioned 360-day period, if the “Application Period”), unless to the extent investment has not been consummated by that date.
(c) The amount of such Net Available Cash is otherwise not so used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) as set forth above (such balance, constitutes “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending .” Pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) aboveCash, the Company and its Parent or any Restricted Subsidiaries Subsidiary may temporarily reduce Indebtedness revolving credit borrowings or otherwise invest utilize such Net Available Cash in any manner that is not prohibited by the terms of this Indenture. .
(d) On the 366th 361st day (or the 541st day if a binding commitment as described in Section 4.05(b)(viii) is entered into) after an Asset Disposition (Disposition, or such earlier date, if any, time as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15)Issuer elects, if the aggregate amount of Excess Proceeds exceeds $50.0 60 million, the Company Issuer will be required within twenty (20) Business Days thereof to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior IndebtednessIssuer elects, to all or some holders of other outstanding Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any Asset Disposition (“that is Pari Passu Notes”) Indebtedness, to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies other Senior Indebtedness that may be purchased out of the Excess Proceeds, at an offer price price, in cash in an amount respect of the Notes, equal to no less than 100% of the principal amount of the Notes and Pari Passu Notes thereof plus accrued and unpaid interest to interest, if any, to, but not including, the date of purchase, . The Asset Disposition Offer in respect of Notes will be made in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicablein this Indenture, in each case minimum denominations of $200,000 and in integral multiples of $1,000 in principal amount excess thereof.
(provided that the unpurchased portion e) Upon completion of any Note such Asset Disposition Offer, the amount of Excess Proceeds that resulted in the requirement to make an Asset Disposition Offer shall be reset to zero (regardless of whether there are any remaining Excess Proceeds upon such completion). Upon consummation or expiration of any Asset Disposition Offer, any remaining Net Available Cash shall not be less than $2,000 in principal amount) or, in deemed Excess Proceeds and the case of Pari Passu Notes, in Parent and its Restricted Subsidiaries may use such other integral multiples as may be specified in the agreements governing the Pari Passu NotesNet Available Cash for any purpose not prohibited by this Indenture. To the extent that If the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to such other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes Senior Indebtedness validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee Excess Proceeds shall select be allocated among the tendering Holders of Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a such other Senior Indebtedness pro rata basis based on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notessuch other Senior Indebtedness so tendered and not properly withdrawn. For the purposes of calculating the principal amount of any such Indebtedness tendered in an Asset Disposition Offer that is not denominated in U.S. dollar, such principal amount shall be converted into its U.S. Dollar Equivalent as of a date selected by the Issuer that is within the Asset Disposition Offer Period or no more than five (5) Business Days prior to the beginning of the Asset Disposition Offer Period. Upon completion of such any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each .
(f) To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than the currency in which the relevant Notes are denominated, the amount thereof payable in respect of such Notes shall not exceed the net amount of funds in the currency in which such Notes are denominated that is actually received by the Issuer upon converting such portion of the Net Available Cash into such currency.
(g) The Asset Disposition Offer Offer, insofar as it relates to the Notes, will remain open for a period of 20 not less than five (5) Business Days following its commencement, except to the extent that a longer period is required by applicable law commencement (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 Company Issuer will purchase the principal amount of Notes and Pari Passu Notes and, to the extent it elects, Senior Indebtedness required to be repaid or purchased by it pursuant to this Section 4.15 such offer (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Senior Indebtedness that is Pari Passu Notes Indebtedness validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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:.
(1h) that the Asset Disposition Offer is being made pursuant to this Section 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company Parent and its Restricted Subsidiaries as may satisfy the foregoing obligations with respect to any Net Available Cash from an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 Asset Disposition by making an Asset Disposition Offer with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes prior to the expiration of the relevant 360 days (or such longer period provided above) respect to all or part of the Net Available Cash in advance of being required to do so by this Section 4.15. Indenture.
(i) The Company Issuer will comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.15Indenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.154.05, the Company 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 conflictsuch compliance.
(j) Except as otherwise provided in Section 9.01, the provisions of this Indenture relating to the Issuer’s obligation to make an Asset Disposition Offer may be waived or modified with the consent of Holders of a majority in outstanding principal amount of the Notes (with such consent, for the avoidance of doubt, to be considered effective if the aggregate principal amount of the Notes of consenting Holders represents a majority of the aggregate outstanding principal amount of the Notes as a whole and without regard to the level of consent obtained among Holders of each constituent series of Notes).
Appears in 2 contracts
Limitation on Sales of Assets and Subsidiary Stock. The Company will not(a) Neither the Parent nor the Issuer shall, and will the Issuer shall not permit any of its Restricted Subsidiaries to, make any consummate an Asset Disposition (other than with respect to a Rig (together with any related machinery and equipment required to operate the Rig that is subject to the the same Asset Disposition), which dispositions are governed by Section 4.11(g)), unless:
(1) the Company Issuer or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) at the time of such Asset Disposition at least equal to not less than the Fair Market Value of the assets sold or otherwise disposed of (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on measured as of the date of contractually agreeing the definitive agreement with respect to such Asset Disposition) of the shares and assets subject to such Asset Disposition;); and
(2) at least 75% of the consideration from such Asset Disposition therefor received by the Company Issuer or such Restricted Subsidiary, as the case may bebe (which, for purposes of this clause (2), consideration will not include any contingent payment obligations related to such Asset Disposition, including, earn-out payments, purchase price adjustments and deferred purchase price payments), is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of Equivalents; provided that the following shall be deemed to be cashamount of:
(aA) any liabilities (liabilities, as shown on the face of the CompanyIssuer’s or such Restricted Subsidiary’s then most recent balance sheet)sheet or in the notes thereto, of the Company Issuer or any Restricted Subsidiary of its Subsidiaries (other than contingent liabilities and Subordinated Obligationsliabilities that are by their terms subordinated to the Notes) (i) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases and from which the Company Issuer or such Restricted Subsidiary from further liabilityhas been validly released by all creditors in writing, or (ii) in respect of which neither the Issuer nor any Subsidiary following such Asset Disposition has any obligation;
(bB) any securities, notes securities or other obligations received by the Company Issuer or any such Restricted Subsidiary from such transferee that are converted by the Company Issuer or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash received in that conversionor Cash Equivalents received) within 180 days of following the closing of such Asset Disposition;
(C) any Capital Stock, properties or assets of the kind referred to in Section 4.11(b)(1);
(D) cash held in escrow as security for any purchase price settlement, for damages in respect of a breach of representations and warranties or covenants or for payment of other contingent obligations in connection with such Asset Disposition; and
(cE) any Designated Noncash Consideration received by the Company Issuer or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (cE) that is at that time outstanding, not to exceed $100.0 10.0 million (at the time of the receipt of such Designated Noncash Consideration, with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value, in each case, shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 365 days after the receipt of any Net Cash Proceeds of any Asset Disposition (other than with respect to a Rig, which is governed by Sections 3.09, 4.08, 4.11(g) and 4.19), the Issuer or such Subsidiary, at its option, may apply the Net Cash Proceeds from such Asset Disposition to one or more of the following, or any combination,
(1) to make (A) an Investment in any one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock of a Subsidiary or results in the Issuer or its Subsidiaries owning an amount of the Capital Stock of such business such that it constitutes a Subsidiary, (B) capital expenditures in respect of the Issuer, its Subsidiaries or their respective assets or (C) acquisitions of other properties or assets to be held by the Issuer or its Subsidiaries (including assets that replace the business, properties and assets of the Issuer or any of its Subsidiaries that were the subject of such Asset Disposition), in the case of each of (A), (B) and (C), used or useful in a Related Business; or
(2) to reduce or repay Obligations under the Notes in accordance with the provision set forth under Section 3.07, through open market purchases of the Notes or through an offer to purchase Notes (in accordance with the procedures set forth below for an Asset Disposition Offer); and
(3provided, that all Net Cash Proceeds used to make such an offer to purchase shall be deemed to have been so applied whether or not accepted by the Holders; provided that a binding commitment to apply Net Cash Proceeds as set forth in Section 4.11(b)(1) an amount equal to 100% shall be treated as a permitted application of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days Proceeds from the date of such commitment so long as the Issuer or such Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 180 days of the end of such 365-day period (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Cash Proceeds are applied in connection therewith, then the Issuer or such Subsidiary shall be permitted to apply the Net Cash Proceeds in any manner set forth above before the expiration of such 180- day period and, in the event the Issuer or such Subsidiary fails to do so, then such Net Cash Proceeds shall constitute Excess Proceeds (as defined below).
(c) Any Net Cash Proceeds from an Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment that are not invested or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness applied as provided and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(btime period set forth in Section 4.11(b) second, will be deemed to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, constitute “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward . The Issuer shall make an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors all Holders of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause Notes (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) of sales of assets to purchase purchase, prepay or redeem the maximum aggregate principal amount of the Notes and any such Pari Passu Notes (equal to which the Asset Disposition Offer applies $2,000 or integral multiples of $1,000 in excess thereof), that may be purchased out of the Excess Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes thereof, plus accrued and unpaid interest to, but not including, the date fixed for the closing of such offer (subject to the rights of Holders on the relevant record date of purchaseto receive interest due on the relevant interest payment date), in accordance with the procedures set forth herein in this Indenture. The Issuer shall commence an Asset Disposition Offer with respect to Excess Proceeds within 30 days after the date that Excess Proceeds exceed $10.0 million by delivering the notice required pursuant to Section 3.10, with a copy to the Trustee. The Issuer may, at its election, satisfy the foregoing obligations with respect to any Net Cash Proceeds from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Cash Proceeds prior to the expiration of the relevant 365-day period (or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount such longer period provided above).
(provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amountd) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in any purpose not prohibited by this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis basis, by lot or by such other methods in accordance with the applicable procedures of the Depositary, based on the basis of the aggregate accreted value or principal amount of such the Notes tendered (with adjustments as necessary so that no Notes and Pari Passu Noteswill be repurchased in part in an unauthorized denomination). Upon completion of any such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to that resulted in the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 pursuant to the Asset Disposition Offer. Any Asset Disposition Offer shall be made reset to all Holders. The notice, which shall govern the terms of the Asset Disposition Offer, shall state:zero.
(1e) Pending the final application of any Excess Proceeds, the Issuer (or the applicable Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Excess Proceeds in any manner that the Asset Disposition Offer is being made pursuant to not prohibited by this Section 4.15;Indenture.
(2f) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and Issuer shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will comply, to the extent applicable, with the requirements of Rule 14(e) of 14e-l 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 the Notes pursuant to this Section 4.15an Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.15Indenture, the Company will Issuer shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(g) Neither the Parent nor the Issuer shall, and the Issuer shall not permit any of its Subsidiaries to, consummate an Asset Disposition (including the occurrence of a Total Loss) of a Rig unless (i) with respect to any conflictsuch Asset Disposition that is not a Total Loss, the Rig Owner receives consideration at the time of such Asset Disposition at least equal to the Fair Market Value of the Rig, (ii) no more than one (1) prior Asset Disposition of a Rig owned by any of the Issuer, the Guarantors or any Subsidiary thereof has occurred (excluding any Asset Disposition consisting of a Total Loss of a Rig if the Issuer or one of its Subsidiaries acquires a Rig of at least substantially similar value as the Rig subject to such Total Loss (with such value determined immediately prior to giving effect to such Total Loss) and all of the Net Cash Proceeds of such Total Loss are maintained in a deposit account constituting Collateral until such Rig of at least substantially similar value is acquired), (iii) at least three (3) Rigs will continue to be owned by Rig Owners immediately after giving effect to such Asset Disposition; provided, that in the case of a Total Loss of a Rig following two Asset Dispositions of Rigs permitted pursuant to Section 4.11(g) (neither of which was a Total Loss), to the extent at least two (2) Rigs are then owned by the Issuer and its Subsidiaries in the aggregate without being subject to any Liens permitted pursuant to clause (6), (8) or (9) of the definition of Permitted Liens, the Issuer and its Subsidiaries shall be deemed to have owned at least three (3) Rigs if, within 365 days following the Issuer’s receipt of all of the Net Cash Proceeds of such Total Loss, the Rig Owners own at least three (3) Rigs not subject to any Lien permitted pursuant to clause (6), (8) or (9) of the definition of Permitted Liens (provided further, that all such Net Cash Proceeds are maintained in a deposit account constituting Collateral until the Rig Owners own at least three (3) such Rigs), (iv) with respect to any Asset Disposition that is not a Total Loss, at least 75% of the consideration therefor received by the Issuer or any Subsidiary, as the case may be (which, for purposes of this clause (iv), consideration will not include any contingent payment obligations related to such Asset Disposition, including earn-out payments, purchase price adjustments and deferred purchase price payments, and cash held in escrow as security for any purchase price settlement, for damages in respect of a breach of representations and warranties or covenants or for payment of other contingent obligations in connection with such Asset Disposition shall be deemed to be Cash Equivalents for purposes of this clause (iv) and for no other purpose), is in the form of cash or Cash Equivalents, (v) with respect to any Asset Disposition that is not a Total Loss, no Default or Event of Default exists immediately before or immediately after giving effect to such Asset Disposition, (vi) the Net Cash Proceeds from any such Asset Disposition that is not a Total Loss are at least (a) $150.0 million, with respect to the NLN, or (b) $50.0 million, with respect to any other Rig, and (vii) the Net Cash Proceeds from such Asset Disposition are applied in accordance with Sections 3.09, 4.08 and 4.19 to the extent applicable.
Appears in 2 contracts
Limitation on Sales of Assets and Subsidiary Stock. The Company will notnot conduct, and will not permit any of its Restricted Subsidiaries toto conduct, make any an Asset Disposition Sale unless:
(1) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration (both cash and non cash) at the time of such Asset Sale at least equal to not less than the Fair Market Value fair market value (such ▇▇▇▇ ▇▇▇▇▇▇ Value evidenced by a Board Resolution set forth in an Officers' Certificate delivered to be determined on the date Trustee prior to, or contemporaneously with, the consummation of contractually agreeing to such the Asset DispositionSale) of the shares and assets subject to such Asset Disposition;sold or otherwise disposed of; and
(2) at least 75% of the consideration from such Asset Disposition therefor received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets. For purposes Equivalents; provided, however, that the amount of this clause (2), each of the following shall be deemed to be cash:
(aA) any liabilities (as shown on the face of the Company’s 's or such Restricted Subsidiary’s then 's most recent balance sheetsheet or in the notes thereto), of the Company or any Restricted Subsidiary (other than contingent Disqualified Stock and liabilities and Subordinated Obligations) that are by their terms subordinated to the Securities or the Subsidiary Guarantees that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
assets), and (bB) any securities, notes Securities or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary in a reasonable and prompt manner into cash (to the extent of the cash received in that conversion) within received), shall be deemed to be cash for purposes of this provision. Within 180 days of the closing of such after any Asset Disposition; and
(c) any Designated Noncash Consideration received by Sale, the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of may apply the Net Available Cash Proceeds from such Asset Disposition:
Sale at its option (a) first, is applied by to permanently reduce debt outstanding under secured Indebtedness (other than Disqualified Stock) of the Company and/or its Restricted Subsidiaries (and to make corresponding reductions to the commitments in respect thereof) or such Restricted Subsidiary, as the case may be,
(ib) to the extent the Company make an investment in a business or any Restricted Subsidiary, as the case may be, elects (capital expenditure or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness other long-term assets of the Company or of a its Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending Subsidiaries. Pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) aboveProceeds, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Proceeds in Cash Equivalents. Any Net Proceeds from the Asset Sale that are not applied or invested as provided in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph sentence of this Section 4.15), if paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $50.0 10.0 million, the Company will be required to shall make an offer (“Asset Disposition Offer”) to all Holders holders of Notes notes (an "Asset Sale Offer") and, to the extent required by the terms of other Senior any Pari Passu Indebtedness, to all holders of other Senior Pari Passu Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Pari Passu Indebtedness with the proceeds from any Asset Disposition Sale (“"Pari Passu Notes”") to purchase the maximum principal amount of Notes Securities and any such Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes thereof plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notesthis Indenture. To the extent that the aggregate amount of Notes Securities and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes Securities and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes Securities and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notesbasis. Upon completion of such Asset Disposition Offeroffer to purchase, even if Securities less than the Excess Proceeds are tendered for purchase, the amount of Excess Proceeds shall be reset at to zero. Each The Asset Disposition Sale Offer will shall remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “"Asset Disposition Sale Offer Period”"). No later than five Business Days after the termination of the Asset Disposition Sale Offer Period (the “"Asset Disposition Sale Purchase Date”"), the Company will purchase the principal amount of Notes Securities and Pari Passu Notes required to be purchased pursuant to this Section 4.15 covenant (the “"Asset Disposition Sale Offer Amount”") or, if less than the Asset Disposition Sale Offer Amount has been so validly tendered, all Notes Securities and Pari Passu Notes validly tendered in response to the Asset Disposition Sale Offer. Payment for any Securities so purchased shall be made in the same manner as interest payments are made. If the Asset Sale 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 or holders or lenders who tender Pari Passu Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Disposition Sale Offer, the Company shall send, by first class mail, a notice to the Trustee and each of the Holders of the Securities, with a copy to each Holder at its registered addressthe Trustee. The notice shall contain all instructions and materials necessary to enable such Holder Holders to tender Notes Securities pursuant to the Asset Disposition Sale Offer. Any The Asset Disposition Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Disposition Sale Offer, shall state:
(1a) that the Asset Disposition Sale Offer is being made pursuant to this Section 4.153.5 and the length of time the Asset Sale Offer shall remain open;
(2b) the Asset Disposition Sale Offer Amount Amount, the purchase price and the Asset Disposition Sale Purchase Date;
(3c) that any Notes Security not tendered or accepted for payment shall continue to accrete or accrue interest;
(4d) that, unless the Company defaults in making such payment, any Notes Security accepted for payment pursuant to the Asset Disposition Sale Offer shall cease to accrete or accrue interest after the Asset Disposition Sale Purchase Date;
(5e) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note Security purchased pursuant to any Asset Disposition Sale Offer shall be required to surrender the Note, Security with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Notes completed, or transfer by book-entry transferSecurity, to the Company, a depositorydepositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Sale Purchase Date;
(7f) that Holders shall be entitled to withdraw their election if the Company, the Depository depositary or the Paying Agent, as the case may be, receives, not later than the second business day prior to expiration of the Asset Disposition Purchase DateSale Offer Period, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note Security, the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note Security purchased;
(8) g) that, if the aggregate principal amount of Securities and Pari Passu Notes surrendered by Holders holders and lenders, as the case may be, exceeds the Asset Disposition Sale Offer Amount, the Company shall select the Securities and Pari Passu Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Securities and Pari Passu Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);; and
(9h) that Holders whose Notes Securities were purchased only in part shall be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 OfferSecurities surrendered. On or before the Asset Disposition Sale Purchase Date, the Company willshall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Sale Offer Amount of Notes Securities and Pari Passu Notes or portions of such Notes Securities and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Sale Offer, or if less than the Asset Disposition Sale Offer Amount has been validly tendered and not properly withdrawn, all Notes Securities and Pari Passu Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note 1,000, and shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ ' Certificate stating that such Securities and Pari Passu Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 and, in addition3.5. The Company, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. The Company depositary or the Paying Agent, as the case may be, will shall promptly (but in any case not later than five Business Days days after termination of the Asset Disposition Offer PeriodSale Purchase Date) 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 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 shall promptly issue a new NoteSecurity, and the Trustee, upon delivery of an Officers’ Certificate written request from the Company, will Company shall authenticate and mail or deliver such new Note Security to such Holder, in a principal amount equal to any unpurchased portion of the Note Security surrendered; provided that each such new Note Security will be in a principal amount of $2,000 1,000 or an integral multiple of $1,000 in excess thereof1,000. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Note Security or Pari Passu Note, as the case may be, not so accepted will shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will shall publicly announce the results of the Asset Disposition Sale Offer on or promptly following the Asset Disposition Sale Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will comply, to the extent applicable, comply with the requirements of Rule 14(e) of 14e-1 under the Exchange Act and any other securities laws or and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes the Securities pursuant to this Section 4.15the Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15the Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this described in the Indenture by virtue of any the conflict.
Appears in 2 contracts
Sources: Indenture (Portola Packaging, Inc. Mexico, S.A. De C.V.), Indenture (Portola Packaging Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any consummate an Asset Disposition Sale unless:
(1) the Company (or such Restricted Subsidiary, as the case may be, ) receives consideration (both cash and non cash) at the time of such Asset Sale at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) fair market value of the shares and assets subject to such Asset Disposition;or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration from such Asset Disposition received therefor by the Company (or such Restricted Subsidiary, as the case may be, ) is in the form of cash or Cash Equivalents or Replacement AssetsEquivalents. For purposes of this clause (2)provision, each of the following shall be deemed to be cash:
(aA) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (as shown on the most recent consolidated balance sheet of the Company and its Restricted Subsidiaries other than contingent liabilities and Subordinated Obligationsliabilities that are by their terms subordinated to the Notes or any Subsidiary Guaranty) that are assumed by the transferee of any such assets pursuant to a customary novation an agreement that releases the Company or any such Restricted Subsidiary from further liabilityliability with respect to such liabilities;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days (to the extent of the cash or Cash Equivalents received in that conversion);
(C) within 180 days any stock or assets of the closing kind referred to in clause (2) or (4) of such Asset Dispositionparagraph (b) of this Section 4.06; and
(cD) any Designated Noncash Non-cash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition Sale having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)fair market value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (cD) that is at that time outstanding, not to exceed $100.0 15 million (at the time of receipt of such Designated Non-cash Consideration, with the Fair Market Value fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and.
(3b) Within 365 days after the receipt of any Net Proceeds from an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) firstSale, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any such Restricted SubsidiarySubsidiary may apply such Net Proceeds, as the case may be, elects at its option:
(or is required by the terms of any Bank Indebtedness), 1) to prepay, repay or purchase such Bank repurchase Senior Indebtedness of the Company or any Subsidiary Guarantor or any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor;
(2) to make an Investment in (provided such Investment is in the form of Capital Stock), or to acquire all or substantially all of the assets of, a Person engaged in a Permitted Business if such Person is, or will become as a result thereof, a Restricted Subsidiary within 365 days from the date of such Asset Disposition Subsidiary;
(such period, the “Application Period”), unless 3) to the extent such Net Available Cash is otherwise used in accordance with clause make a capital expenditure; or
(ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant 4) to this clause acquire long lived assets (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if anyother than securities) to be permanently reduced used in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending a Permitted Business. Pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) aboveProceeds, the Company and its Restricted Subsidiaries may temporarily reduce the revolving Indebtedness under the Senior Credit Facilities or otherwise invest such Net Available Cash Proceeds in any manner that is not prohibited by this Indenture. On the 366th day after an .
(c) Any Net Proceeds from Asset Disposition Sales that are not applied or invested as provided in paragraph (b) or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if 4.06 will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $50.0 10.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to purchase from all Holders of Notes (an "Asset Sale Offer") and, to the extent required by the terms of other Senior Indebtednessif applicable, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to redeem or purchase (or make an offer to do so) any other Senior Subordinated Indebtedness of the Company, the provisions of which require the Company to redeem or purchase (or make an offer to do so) such Senior Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) to purchase Sales, the maximum aggregate principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies other Senior Subordinated Indebtedness that may be purchased out of the (on a pro rata basis) with such Excess Proceeds, at an . The offer price for the Notes in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest interest, if any, to the date of purchase, and will be payable in accordance with cash and the procedures redemption or purchase price for such other Senior Subordinated Indebtedness shall be as set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case related documentation governing such Indebtedness. If any Excess Proceeds remain after consummation of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess ProceedsSale Offer, the Company may use any remaining such Excess Proceeds for general corporate purposes, subject to other covenants contained in this any purpose not prohibited by the Indenture. If the aggregate principal amount purchase price of the Notes and Pari Passu Notes validly the other Senior Subordinated Indebtedness tendered and not properly withdrawn pursuant to an into such Asset Disposition Sale Offer exceeds the amount of Excess Proceeds, the Trustee Company shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on but in round denominations, which in the basis case of the aggregate Notes will be denominations of $2,000 initial principal amount and multiples of such tendered Notes and Pari Passu Notes$1,000 thereafter. Upon completion of such each Asset Disposition Sale Offer, the amount of Excess Proceeds related to such Asset Sale Offer shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement.
(1) Promptly, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days and in any event within 10 days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required becomes obligated to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of make an Asset Disposition Sale Offer, the Company shall send, by first class mail, a notice deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Notes purchased by the Company either in whole or in part (subject to prorating as described in paragraph (c) of this Section 4.06 in the event the Asset Sale Offer is oversubscribed) in a minimum amount of $2,000 or in larger integral multiples of $1,000 of principal amount, at its registered addressthe applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Asset Disposition Sale Offer. Any , together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Asset Disposition Sale Offer is delivered to the Trustee as provided above, the Company shall be made deliver to all Holders. The notice, which shall govern the terms Trustee an Officers' Certificate as to (A) the amount of the Asset Disposition Sale Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Asset Sale Offer, shall state:
(1B) that the allocation of the Net Available Cash from the Asset Disposition Sale pursuant to which such Asset Sale Offer is being made and (C) the compliance of such allocation with the provisions of this Section 4.06. On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Cash Equivalents, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Asset Sale Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Asset Sale Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Offer Amount applicable to the Notes, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;4.06.
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the an appropriate form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes duly completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent Company at the address specified in the notice at least three days before Business Days prior to the Asset Disposition Purchase Date;
(7) that . Holders shall be entitled to withdraw their election if the Company, the Depository Trustee or the Paying Agent, as the case may be, receives, Company receives not later than the second business day one Business Day prior to the Asset Disposition Purchase Date, a notice telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) that . Holders whose Notes were are 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 transfer); andsurrendered.
(104) all other procedures, if any, determined by At the Company, consistent with this Indenture, that a Holder must follow in order to have its time the Company delivers Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will Trustee which are to be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Dateaccepted for purchase, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will also deliver to the Trustee an Officers’ ' Certificate stating that such Notes or portions thereof were are to be accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.15 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu NotesSection. 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new A 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold been accepted for purchase at the properties and assets of time the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15Trustee, and shall comply with directly or through an agent, mails or delivers payment therefor to the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. surrendering Holder.
(e) The Company will shall comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.154.06. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.154.06, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Indenture Section 4.06 by virtue of any conflictits compliance with such securities laws or regulations.
Appears in 2 contracts
Sources: Indenture (Leasehold Resource Group LLC), Indenture (SHG Holding Solutions Inc)
Limitation on Sales of Assets and Subsidiary Stock. The Company will not, and will not permit any of its Restricted Subsidiaries to, make directly or indirectly, consummate any Asset Disposition unless:
(1) the Company or such a Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cash) at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on measured as of the date of contractually agreeing the definitive agreement with respect to such Asset Disposition) ), of the shares assets and assets subject Equity Interests issued or sold pursuant to such Asset Disposition;
(2) at least 75% of the consideration from such Asset Disposition received by the Company or such its Restricted Subsidiary, as the case may be, Subsidiaries is in the form of cash or Temporary Cash Equivalents Investments, Additional Assets or Replacement Assets. For purposes of this clause any combination thereof (2collectively, the “Cash Consideration”), ; provided that each of the following shall will be deemed to be cash:
(a) any liabilities (liabilities, as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent consolidated balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligationsliabilities that are by their terms subordinated to the Securities or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation by written agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(b) with respect to any Asset Disposition of Oil and Gas Properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(c) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such the transferee that are are, within 180 days of the Asset Disposition, converted by the Company or such Restricted Subsidiary into cash (cash, to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(cd) any Designated Noncash Non-Cash Consideration received by the Company or any such Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)Value, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (c) that is at that time outstandingd), not to exceed $100.0 million an amount equal to 7.5% of the Company’s ACNTA (determined at the time of receipt of such Designated Non-Cash Consideration), with the Fair Market Value of each item of Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company (or such a Restricted Subsidiary, as the case may be,) within 365 days to:
(ia) prepay, repay, redeem or purchase any Senior Debt;
(b) acquire Additional Assets; or
(c) make capital expenditures in a Permitted Business. The requirement of clauses (3)(b) and (3)(c) of the preceding paragraph of this Section 3.5 shall be deemed to be satisfied if a bona fide binding contract committing to make the extent investment, acquisition or expenditure referred to therein is entered into by the Company (or any Restricted Subsidiary of the Company) with a Person other than a Restricted Subsidiary of the Company within the time period specified in the preceding paragraph and such Net Available Cash is subsequently applied in accordance with such contract within six months following the date such agreement is entered into. Pending application of Net Available Cash pursuant to this Section 3.5, the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness Subsidiary of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of may apply the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of temporarily reducing Indebtedness under any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness Credit Facility or otherwise invest such the Net Available Cash in any manner that is not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board The amount of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash not applied or invested as provided above will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds equals or exceeds $50.0 million, the Company will be required to shall make an offer to purchase Securities and other Pari Passu Indebtedness of the Company (an “Asset Disposition Offer”) within 30 days, and shall purchase Securities tendered pursuant to all Holders of Notes and, to the extent required an Offer by the terms of Company for the Securities (and such other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out Indebtedness of the Excess Proceeds, Company) at an offer a purchase price in cash in an amount equal to of 100% of the their principal amount of the Notes and Pari Passu Notes without premium, plus accrued and but unpaid interest to to, but not including, the date of purchase, subject to the right of Holders of record on the relevant record date to receive interest on the relevant interest payment date (or, in respect of such other Pari Passu Indebtedness of the Company, such lesser price, if any, as may be provided for by the terms of such Pari Passu Indebtedness of the Company) in accordance with the procedures (including prorating in the event of oversubscription) set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained below in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu NotesSection 3.5. Upon completion of such an Asset Disposition Offer, the amount of Excess Proceeds shall will be deemed to be reset at to zero. Each The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes Securities and Pari Passu Notes Securities required to be purchased pursuant to this Section 4.15 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 Notes Securities validly tendered and not properly withdrawn in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Dateinterest payment date, any accrued and unpaid interest interest, if any, will be paid to the Person in whose name a Note Security is registered at the close of business on such record date, and no additional further interest will be payable to Holders who tender Notes Securities pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, to the extent necessary on a pro rata basis to (except that any Securities represented by a Security in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the extent necessaryTrustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), the Asset Disposition Offer Amount of Notes Securities and Pari Passu Notes Securities or portions of such Notes Securities and Pari Passu Notes 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 Notes Securities so validly tendered and not properly withdrawn, in each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000; provided that if, following the repurchase of a portion of a Security, the remaining principal amount (provided that the unpurchased portion of any Note shall not such Security outstanding immediately after such repurchase would be less than $2,000 in 2,000, then the portion of such Security so repurchased shall be reduced such that the remaining principal amount) or, in the case amount of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing Security outstanding immediately after such Pari Passu Notesrepurchase is $2,000. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes Securities or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 3.5 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu NotesSecurities. The Company or the Paying Agentpaying 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 otherwise deliver in accordance with the applicable procedures of DTC) to each tendering Holder of Notes Securities or holder or lender of Pari Passu NotesSecurities, as the case may be, an amount equal to the purchase price of the Notes Securities or Pari Passu Notes 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 NoteSecurity, and the Trustee, upon delivery of an Officers’ Certificate authentication order from the Company, will authenticate and mail or deliver such new Note Security to such Holder, in a principal amount equal to any unpurchased portion of the Note Security surrendered; provided that each such new Note Security will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess thereofof $2,000. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu NotesSecurities. Any Note 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 or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will comply, to the extent applicable, with the requirements of Rule 14(e) 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes Securities pursuant to this Section 4.15an Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.153.5, 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 conflictits compliance with such securities laws or regulations.
Appears in 2 contracts
Sources: Indenture (CONSOL Energy Inc), Indenture (CONSOL Energy Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1) the Company Borrower or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cashincluding 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 not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;; and
(2) at least 75% of the consideration from therefor received by the Borrower or such Restricted Subsidiary is (i) to the extent the assets subject to such Asset Disposition received by the Company or such Restricted Subsidiarydo not constitute Collateral under this Agreement, as the case may be, is in the form of cash or Cash Equivalents Additional Assets, or Replacement Assets. (ii) to the extent the assets subject to such Asset Disposition do constitute Collateral under this Agreement, in the form of cash or assets that are included in the Collateral.
(b) For the purposes of this clause (2)covenant, each of the following shall be are deemed to be cash:
(a1) any liabilities (as shown on the face assumption of Indebtedness or other obligations of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), Borrower (other than obligations in respect of Disqualified Stock of the Company Borrower) or any Restricted Subsidiary (other than contingent liabilities obligations in respect of Disqualified Stock and Subordinated ObligationsPreferred Stock of a Restricted Subsidiary that is a Subsidiary Guarantor) that are assumed by and the transferee release of any such assets pursuant to a customary novation agreement that releases the Company Borrower or such Restricted Subsidiary from further liabilityall liability on such Indebtedness or obligations in connection with such Asset Disposition;
(b2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (except to the extent of the cash received in that conversion) within 180 days of assets subject to the closing of such applicable Asset Disposition; and
(c) Disposition constitute Collateral under this Agreement, any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)that, when taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time and then outstanding, does not to exceed $100.0 million at the time of the receipt of such Designated Noncash Consideration (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
) the greater of (31) an amount equal to 100$200,000,000 and (2) 1.5% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness total Consolidated assets of the Company or of a Restricted Subsidiary within 365 days from Borrower as shown on the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent most recent balance sheet of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness Borrower filed 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase DateSEC;
(3) that any Notes not tendered securities, notes or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed similar obligations received by the Company, Borrower or any Restricted Subsidiary from the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) transferee that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate are promptly converted by the Company so that only Notes in denominations of $1,000, Borrower or integral multiples thereof, shall be purchased);
(9) 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 transfer)such Restricted Subsidiary into cash; and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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 2 contracts
Sources: Second Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/), Second Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any consummate an Asset Disposition Sale unless:
(1) the Company or such the applicable Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) at the time of the Asset Sale at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;sold or otherwise disposed of as determined in good faith by the Board of Directors of the Company (including the value of all non-cash consideration); and
(2) at least 75% of the consideration from such Asset Disposition received for the assets sold by the Company or such the Restricted Subsidiary, as the case may be, is in the Asset Sale will be in the form of cash or cash, Cash Equivalents or Replacement Assetsassets or Capital Stock which the Company or a Permitted Investing Subsidiary would be permitted to use the Net Cash Proceeds from such Asset Sale to purchase or invest in, if any, pursuant to clause (2) of Section 3.12(b). For the purposes of this clause (2), each of the following shall be are deemed to be cash:
(ai) any Indebtedness and other liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent consolidated balance sheet), sheet of the Company or any Restricted Subsidiary prior to the date of such Asset Sale (other than contingent liabilities and Subordinated ObligationsIndebtedness) (i) that are assumed or repaid or otherwise extinguished by the transferee of any such assets pursuant to a customary novation agreement that releases and (ii) for which the Company or and its Restricted Subsidiaries are released from all liability at the time of such Restricted Subsidiary from further liabilityAsset Sale;
(bii) any securities, notes or other obligations Obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted converted, sold or exchanged by the Company or such Restricted Subsidiary into cash (or Cash Equivalents within 90 days, to the extent of the cash or Cash Equivalents received in that conversion) within 180 days of the closing of such Asset Disposition, sale or exchange; and
(ciii) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in such Asset Disposition Sale having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (ciii) that is at that time outstanding, not to exceed $100.0 million (15.0 million, with the Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and.
(3b) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the The Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any a Restricted Subsidiary, as the case may be, elects may (or is required by subject to the terms provisos below) apply the Net Cash Proceeds of any Bank Indebtedness), to such Asset Sale within 360 days thereof to:
(1) prepay, repay repay, purchase, repurchase, redeem, retire, defease or purchase such Bank otherwise retire for value (collectively, “repay”) any:
(i) secured Indebtedness of the Company or a Restricted Subsidiary;
(ii) Indebtedness of any Restricted Subsidiary that is not a Note Guarantor; or
(iii) any Senior Indebtedness, provided that, if the Company repays any Senior Indebtedness other than the Notes pursuant to this clause (iii), it must repay Notes or make an offer to repurchase the Notes at a price equal to or above 100% of the principal amount thereof, whether or not the Holders accept such offer, in each case on a pro rata basis with such other Senior Indebtedness; in the case of each of clauses (i) through (iii) above, constituting Indebtedness for borrowed money or Capitalized Lease Obligations, and permanently reduce the commitments with respect thereto without Refinancing; or
(2) purchase or otherwise invest in:
(i) assets (other than current assets as determined in accordance with GAAP or Capital Stock) to be used by the Company or a Permitted Investing Subsidiary in a Permitted Business or capital expenditures;
(ii) all or substantially all of the assets of a Permitted Business or properties; or
(iii) Capital Stock of: (A) a Restricted Subsidiary held by a Person other than the Company or any of its Subsidiaries or (B) a Person engaged in a Permitted Business that becomes, upon the purchase or investment, a Restricted Subsidiary or, in the case of an Asset Sale in respect of assets or Capital Stock of a Restricted Subsidiary, a Restricted Subsidiary within of which the Company owns, directly or indirectly, an equal or greater percentage of the economic and voting interests of its Capital Stock as it does (immediately prior to such Asset Sale) in respect of the Restricted Subsidiary whose assets or Capital Stock are included in such Asset Sale; or
(3) repay Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for adjustment of purchase price, deferred consideration, earn outs or similar obligations, in each case incurred in connection with the purchase or investment by the Company or a Restricted Subsidiary of or in assets or Capital Stock that occurred prior to such Asset Sale, and solely to the extent such repayment would be permitted under Section 3.12 (b)(2) herein if such purchase or investment had occurred immediately following the consummation of such Asset Sale; provided that such purchase or investment shall have occurred not more than 365 days prior to such Asset Sale; provided that in the case of Section 3.12 (b)(2) above, (A) the following Persons may make a purchase or investment in accordance with the foregoing: (x) the Company, (y) a Wholly Owned Subsidiary or (z) in the case of an Asset Sale in respect of assets or Capital Stock held by a Restricted Subsidiary only, a Restricted Subsidiary of which the Company, owns directly or indirectly, an equal or greater percentage of the economic and voting interests of its Capital Stock as it does of the Restricted Subsidiary that made such Asset Sale and (B) no purchase from the Company or any Subsidiary of the Company will satisfy the provisions of Section 3.12 (b)(2) above (each, other than the Company, a “Permitted Investing Subsidiary”); provided that (x) in the case of Section 3.12 (b)(2) above, a binding commitment shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment so long as the Company, or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 90 days of such commitment (an “Acceptable Commitment”) and such Net Cash Proceeds are actually applied to satisfy such commitment within the later of (i) 360 days after receipt of the Net Cash Proceeds from the related Asset Disposition Sale and (ii) 90 days after the date of such period, the “Application Period”), unless binding commitment and (y) to the extent such Net Available Cash is otherwise used Proceeds are not actually applied to satisfy such commitment within the period set forth in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a)x) above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount Net Cash Proceeds not so prepaid, repaid or purchased, orapplied shall constitute Excess Proceeds.
(iic) to To the extent the Company all or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance a portion of the Net Available Cash after application Proceeds of any Asset Sale are not applied within 360 days thereof (or such longer period as permitted pursuant to an Acceptable Commitment as provided in accordance with Section 3.12(b) above) as described in clause (a1) or (2) of Section 3.12(b) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward will make an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an “Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15Sale Offer”), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to at a purchase such Senior 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes to be purchased, plus accrued and unpaid interest thereon, to the date of purchasepurchase (the “Asset Sale Offer Amount”). The Company will purchase pursuant to an Asset Sale Offer from all tendering Holders on a pro rata basis in the manner provided in Section 5.5, and, at the Company’s option, on a pro rata basis with the holders of any other Senior Indebtedness with similar provisions requiring the Company to offer to purchase the other Senior Indebtedness with the proceeds of Asset Sales, that principal amount (or accreted value in the case of Indebtedness issued with original issue discount) of Notes and the other Senior Indebtedness to be purchased equal to such Excess Proceeds. The Company may satisfy its Obligations under this Section 3.12 with respect to any Excess Proceeds by making an Asset Sale Offer at the Asset Sale Offer Amount prior to the expiration of 360 days from the relevant Asset Sale (or, in the event an Acceptable Commitment has been entered into as set forth in Section 3.12(b) above, the later date of the 360th day following the Asset Sale or the expiration of the 90-day period set forth in Section 3.12(b) above).
(d) The purchase of Notes pursuant to an Asset Sale Offer will occur not less than 20 Business Days following the date thereof, or any longer period as may be required by law, nor more than 45 days following the 360th day following the Asset Sale (or, in the event an Acceptable Commitment has been entered into as set forth in Section 3.12(b), the later date of the 360th day following the Asset Sale or the expiration of the 90-day period set forth in such Section 3.12(b)). The Company may, however, defer an Asset Sale Offer until there is an aggregate amount of Excess Proceeds from one or more Asset Sales equal to or in excess of $25.0 million. At that time, the entire amount of Excess Proceeds, and not just the amount in excess of $25.0 million, will be applied as required pursuant to this Section 3.12. Pending application in accordance with this Section 3.12, Net Cash Proceeds may be applied to reduce revolving credit borrowings, Invested in Cash Equivalents or used for general corporate purposes in accordance with this Indenture.
(e) Each Asset Sale Offer Notice will be mailed first class, postage prepaid, to the procedures record Holders as shown on the register of Holders within 30 days following such 360th day (or, in the event an Acceptable Commitment has been entered into as set forth herein in Section 3.12(b) above, the later date of the 360th day following the Asset Sale or the agreements governing expiration of the Pari Passu Notes90-day period set forth in such Section 3.12(b)), with a copy to the Trustee offering to purchase the Notes as applicabledescribed above. Each Asset Sale Offer Notice will state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date the notice is mailed, other than as may be required by law (the “Asset Sale Offer Payment Date”). Upon receiving notice of an Asset Sale Offer, Holders may elect to tender their Notes in each case whole or in part in a principal amount of $2,000 or integral multiples of $1,000 in principal amount excess thereof in exchange for cash.
(provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amountf) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of On the Asset Disposition Sale Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 Company will, to the extent lawful, :
(1) accept for paymentpayment all Notes or portions thereof properly tendered pursuant to the Asset Sale Offer;
(2) deposit with the Paying Agent funds in an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Company.
(g) To the extent Holders of Notes and holders of other Senior Indebtedness, if any, which are the subject of an Asset Sale Offer properly tender and do not withdraw Notes or the other Senior Indebtedness in an aggregate amount exceeding the amount of Excess Proceeds, the Company will purchase the Notes and the other Senior Indebtedness on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount (based on amounts tendered). If only a portion of Notes and Pari Passu Notes or portions of such Notes and Pari Passu Notes so validly tendered and not properly withdrawn a Note is purchased pursuant to the an Asset Disposition Sale Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased the portion thereof not purchased will be issued in the name of the Holder thereof upon cancellation of the original Note surrendered; provided that each such new (or appropriate adjustments to the principal amount of a Global Note will be in a principal made, as appropriate). Notes (or portions thereof) purchased pursuant to an Asset Sale Offer will be cancelled and cannot be reissued. Upon completion of an Asset Sale Offer, the amount of $2,000 or Excess Proceeds will be reset at zero. Accordingly, to the extent that the aggregate amount of Notes and other Indebtedness tendered pursuant to an integral multiple Asset Sale Offer is less than the aggregate amount of $1,000 in excess thereof. In additionExcess Proceeds, the Company will take may use 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets remaining Net Cash Proceeds for general corporate purposes of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of accordance with this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. Indenture.
(h) The Company will comply, to the extent applicable, comply with the requirements of Rule 14(e) of 14e-1 under the Exchange Act and any other applicable securities laws or regulations in connection with the repurchase purchase of Notes pursuant to this Section 4.15an Asset Sale Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with provisions of this Section 4.153.12, the Company will comply with the applicable securities these laws and regulations and will not be deemed to have breached its obligations under this Indenture Section 3.12 by virtue of any conflictdoing so.
Appears in 1 contract
Sources: Indenture (MDC Partners Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition following the Issue Date unless:
(1i) the Company or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) at least equal to not less than the Fair Market Value fair market value (such ▇▇▇▇ ▇▇▇▇▇▇ Value fair market value to be determined on as of the date of contractually agreeing to such Asset Disposition) ), as determined in Good Faith by the Company (including as to the value of all non-cash consideration), of the shares and assets subject to such Asset Disposition;
(2ii) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:Equivalents; and
(aiii) any liabilities (in the case of an Asset Disposition of Collateral, the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as shown on Collateral to secure the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;Notes.
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration Any Net Available Cash received by the Company or any Restricted Subsidiary from any Asset Disposition:
(1) in such Asset Disposition having an aggregate Fair Market Value the case of (as determined in good faith by A) the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed first $100.0 million of Net Available Cash received by the Company or any Restricted Subsidiary following the Issue Date from all Asset Dispositions (other than any Sale/Leaseback Transaction) consummated after the Issue Date, (B) 75% of any Net Available Cash received by the Company or any Restricted Subsidiary from any other Asset Disposition (other than any Sale/Leaseback Transaction) consummated after the Issue Date shall be applied (x) in the case of any Asset Disposition by a Non-Guarantor Subsidiary or consisting of Capital Stock of a Non-Guarantor Subsidiary, to repay Indebtedness of a Non-Guarantor Subsidiary within 30 days of receipt of such Net Available Cash or (y) otherwise, to make an Asset Disposition Offer in accordance with the Fair Market Value following paragraph and (C) 50% of each item any Net Available Cash received by the Company or any Restricted Subsidiary from any Sale/Leaseback Transaction constituting an Asset Disposition consummated after the Issue Date shall be applied (x) in the case of Designated Noncash Consideration being measured at the time received without giving effect any Asset Disposition by a Non-Guarantor Subsidiary or consisting of Capital Stock of a Non-Guarantor Subsidiary, to subsequent changes repay Indebtedness of a Non-Guarantor Subsidiary within 30 days of receipt of such Net Available Cash or (y) otherwise, to make an Asset Disposition Offer in valueaccordance with Section 3.8(c); and
(32) an amount equal to 100% in the case of the any Net Available Cash from such Asset Disposition:
(a) first, is applied received by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted SubsidiarySubsidiary that is not required to be applied as provided in clause (1) above, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition to (such periodx) reinvest in assets used or useful in a Related Business, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) provided that to the extent the Company assets subject to such Asset Disposition were Collateral, such newly acquired assets shall also be Collateral or such Restricted (y) in the case of an Asset Disposition by a Non-Guarantor Subsidiary electsor consisting of Capital Stock of a Non-Guarantor Subsidiary, to invest in Replacement Assets within the applicable Application Period; andrepay Indebtedness of a Non-Guarantor Subsidiary.
(bc) second, to the extent of the balance of the All Net Available Cash after application that is not applied or invested as provided in accordance with subclause (a1)(B)(x) above or (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a1)(C)(x) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a2) of Section 3.8(b) within the first paragraph of this Section 4.15), if time periods set forth therein will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $50.0 10.0 million, the Company will shall be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase apply such Senior Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) Excess Proceeds to purchase the maximum principal amount of the Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies (on a pro rata basis) that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes Notes, plus accrued and unpaid interest to the date of purchasepurchase (subject to the rights of Holders of record on any record date to receive payments of interest on the related Interest Payment Date), in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case this Indenture in integral multiples of $1,000 (except that no Note will be purchased in part if the remaining principal amount (provided that the unpurchased portion of any Note shall not would be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes2,000). To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the such Excess Proceeds, the Company may use any remaining portion of such Excess Proceeds that is not applied to purchase Notes (“Unutilized Excess Proceeds”) for general corporate purposespurposes or as otherwise required pursuant to its other contractual requirements, subject to the other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer surrendered by Holders exceeds the amount of such Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased shall be selected on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each .
(i) The Asset Disposition Offer will shall remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will shall purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 3.8 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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:.
(1ii) that the Asset Disposition Offer is being made pursuant to this Section 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Dateinterest payment date, any accrued and unpaid interest will shall be paid on such Asset Disposition Purchase Date to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will shall be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. .
(iii) On or before the Asset Disposition Purchase Date, the Company 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 Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples denominations of $1,000 (except that no Note shall be purchased in part if the remaining principal amount (provided that the unpurchased portion of any Note shall not would be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes2,000). The Company or the Paying Agent, as the case may be, will 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 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 will shall promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will 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 shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Note not so accepted will shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will shall publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In .
(e) For the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.153.8, and shall comply with the provisions following are deemed to be cash: (x) except in the case of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In additionDisposition of Collateral, the Fair Market Value assumption of such properties Indebtedness of the Company (other than Disqualified Stock or Subordinated Obligations) or Indebtedness of any Restricted Subsidiary (other than Guarantor Subordinated Indebtedness or Disqualified Stock of any Subsidiary Guarantor) and assets the release of the Company or its such Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (y) securities, notes or similar obligations received by the Company or any Restricted Subsidiary from the transferee that are converted within 90 days by the Company or such Restricted Subsidiary into cash.
(f) The Company will shall comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.153.8. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.153.8, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Indenture by virtue of any conflictIndenture.
Appears in 1 contract
Sources: Indenture (Blockbuster Inc)
Limitation on Sales of Assets and Subsidiary Stock. The Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;; and
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), ) to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such any Restricted Subsidiary Subsidiary, as the case may be, elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee Trustee, in accordance with (in the case of Global Notes) the applicable procedures of the Depository, shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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 (Davita Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
unless (1i) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cashincluding 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 not less than the Fair Market Value fair market value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be as determined on in good faith by the date of contractually agreeing to such Asset DispositionCompany) of the shares and assets subject to such Asset Disposition;
, (2ii) at least 75% of the consideration from such Asset Disposition thereof received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets. For purposes cash equivalents (provided that the amount of this clause (2), each of the following shall be deemed to be cash:
(aw) any liabilities (as shown on the face of the Company’s 's or such Restricted Subsidiary’s then 's most recent balance sheet), sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than contingent liabilities and that are by their terms subordinated to the Senior Subordinated ObligationsNotes) that are assumed by the transferee of any such assets pursuant without recourse to a customary novation agreement that releases the Company or such any of the Restricted Subsidiary from further liability;
Subsidiaries, (bx) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversionreceived) within 180 days of following the closing of such Asset Disposition; and
, (cy) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (cy) that is at that time outstanding, not to exceed $100.0 million 5% of Adjusted Consolidated Assets at the time of the receipt of such Designated Noncash Consideration (with the Fair Market Value 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); and
) and (3z) any assets received in exchange for assets related to a Related Business of comparable market value in the good faith determination of the Board of Directors shall be deemed to be cash for purposes of this provision) and (iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition:Asset
(a) firstexcept to the extent that the aggregate Net Available Cash from all Asset Dispositions that is not applied in accordance with this Section 4.06 (a) exceeds $20.0 million.
(b) In the event of an Asset Disposition that requires the purchase of Senior Subordinated Notes (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(iii)(C), is applied the Company shall be required to purchase Senior Subordinated Notes (and other Senior Subordinated Indebtedness of the Company) tendered pursuant to an offer by the Company or such Restricted Subsidiaryfor the Senior Subordinated Notes (and other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount plus accrued and unpaid interest and liquidated damages, as the case may be,
(i) if any, to the extent date of purchase in accordance with the procedures (including prorating in the event of oversubscription), set forth in Section 4.06(c). If the aggregate purchase price of Senior Subordinated Notes (and other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of the Senior Subordinated Notes (and other Senior Subordinated Indebtedness of the Company), the Company or may apply the remaining Net Available Cash for any Restricted Subsidiary, as the case may be, elects (or is required purpose permitted by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the The Company or such Restricted Subsidiary determines that the Net Available Cash will shall not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer Offer for Senior Subordinated Notes (“and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor (after application of the proceeds as provided in clauses (A) and (B) of Section 4.06(a)(iii)) is less than $10.0 million for any particular Asset Disposition Offer”) to all Holders (which lesser amount shall be carried forward for purposes of Notes and, determining whether an Offer is required with respect to the extent required by the terms of other Senior IndebtednessNet Available Cash from any subsequent Asset Disposition).
(c) (1) Promptly, to all holders of other Senior Indebtedness outstanding with similar provisions requiring and in any event within 30 days after the Company becomes obligated to make an offer Offer, the Company shall be obligated to purchase such Senior 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest deliver to the date of purchaseSenior Subordinated Notes Trustee and send, by first-class mail to each Senior Subordinated Noteholder, a written notice stating that the Senior Subordinated Noteholder may elect to have his Senior Subordinated Notes purchased by the Company either in accordance with whole or in part (subject to prorating as hereinafter described in the procedures set forth herein or event the agreements governing the Pari Passu Notes, as applicable, in each case Offer is oversubscribed) in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in at the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, by first class mail, a notice to the Trustee and to each Holder at its registered addressprice. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain or incorporate by reference such information concerning the business of the Company which the Company in good faith believes will enable such Senior Subordinated Noteholders to make an informed decision and all instructions and materials necessary to enable such Holder to tender Senior Subordinated 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 together with the Asset Disposition Offer is being made pursuant address referred to this Section 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
in clause (3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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 (Wesco Distribution Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition unless:
unless (1i) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cash) equal to not less than at the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date time of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration from such Asset Disposition received at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:Board of
(a) any liabilities (as shown on except to the face extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this Section 4.06(a) exceeds $5,000,000. Pending application of the Company’s or such Restricted Subsidiary’s then most recent balance sheetNet Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Permitted Investments or used to reduce outstanding borrowings under revolving credit facilities. For the purposes of Section 4.06(a)(i), the following are deemed to be cash or cash equivalents: (x) the assumption of Indebtedness of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee release of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
all liability on such Indebtedness in connection with such Asset Disposition and (by) any securities, notes or other obligations securities received by the Company or any such Restricted Subsidiary from such the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; andcash.
(cb) any Designated Noncash Consideration received In the event of an Asset Disposition that requires the purchase of Securities pursuant to Section 4.06(a)(ii)(C), the Company shall be required to purchase Securities tendered pursuant to an offer by the Company for the Securities (the "Offer") at a purchase price of 100% of their principal value (without premium) plus accrued but unpaid interest in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 4.06(c). The Company shall not be required to make an Offer to purchase Securities pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $5,000,000 (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or any Restricted Subsidiary in part (subject to prorating as hereinafter described in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such Asset Disposition having an aggregate Fair Market Value notice (as determined the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith by believes will enable such Holders to make an informed decision (which at a minimum will include (i) the Board of Directors 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), taken (ii) a description of material developments in the Company's business subsequent to the date of the latest of such reports, and (iii) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with all other Designated Noncash Consideration received pursuant to this the information contained in clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value3); and.
(32) Not later than the date upon which written notice of an Offer is delivered to the Trustee, the Company shall deliver to the Trustee an Officers' Certificate as to (i) the amount equal to 100% of the Offer (the "Offer Amount"), (ii) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Asset Disposition:
Offer is being made and (aiii) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date compliance of such Asset Disposition (allocation with the provisions of Section 4.06(a). On such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a)date, the Company shall also irrevocably deposit with the Trustee or such Restricted Subsidiary will retire such Indebtedness with a paying agent (or, if the Company is acting as its own paying agent, segregate and will cause hold in trust) in Temporary Cash Investments, maturing on the related commitment (last day prior to the Purchase Date or on the Purchase Date if any) to be permanently reduced in funds are immediately available by open of business, an amount equal to the principal amount so prepaidOffer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), repaid or purchased, or
(ii) the Company shall deliver to the extent Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent Trustee is less than the Offer Amount, the Trustee shall deliver the excess to the Company immediately after the expiration of the balance of the Net Available Cash after Offer Period for application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;Section.
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note Security purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the NoteSecurity, with the an appropriate form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes duly completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent Company at the address specified in the notice at least three days before Business Days prior to the Asset Disposition Purchase Date;
(7) that . Holders shall be entitled to withdraw their election if the Company, the Depository Trustee or the Paying Agent, as the case may be, receives, Company receives not later than the second business day one Business Day prior to the Asset Disposition Purchase Date, a notice telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note Security purchased;
(8) that, if . If at the expiration of the Offer Period the aggregate principal amount of Notes Securities surrendered by Holders holders thereof exceeds the Asset Disposition Offer Amount, the Company shall select the Notes Securities to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes Securities in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) that . Holders whose Notes were Securities are purchased only in part shall be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer); andSecurities surrendered.
(104) all other procedures, if any, determined by At the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in time the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid Company delivers Securities to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will Trustee which are to be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Dateaccepted for purchase, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will also deliver to the Trustee an Officers’ ' Certificate stating that such Notes or portions thereof were Securities are to be accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.15 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu NotesSection. 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company A Security shall be deemed to have sold been accepted for purchase at the properties and assets of time the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15Trustee, and shall comply with directly or through an agent, mails or delivers payment therefor to the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. surrendering Holder.
(d) The Company will shall comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes Securities pursuant to this Section 4.15Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15Section, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Indenture Section by virtue of any conflictthereof.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
unless (1i) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cashincluding 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 not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
, (2ii) at least 75% of the consideration from such Asset Disposition therefor received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of cash; provided that the following shall be deemed to be cash:
cash for purposes of this clause (aii) (but not for purposes of the definition of Net Available Cash): (1) the amount of any liabilities (as shown on the face of the Company’s 's or such Restricted Subsidiary’s then 's most recent balance sheet), sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligationsthat are by their terms subordinated to the Notes or the Guarantees) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases assets, (2) the Company or such Restricted Subsidiary from further liability;
(b) amount of any securities, notes or other obligations securities received by the Company or any such Restricted Subsidiary from such transferee that are converted or scheduled to be converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversionor scheduled to be received) within 180 90 days of following the closing of such Asset Disposition; and
, (c3) the Fair Market Value of any Related Assets received by the Company or such Restricted Subsidiary in such Asset Disposition and (4) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (c4) that is at that time outstandinghas not been converted into cash or cash equivalents, not to exceed $100.0 million 10% of Consolidated Net Tangible Assets as of the end of the most recent fiscal quarter for which financial statements are publicly available at the time such Designated Noncash Consideration is received (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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 (Maxxim Medical Inc/Tx)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company and Parent will not, and will not permit any of its the Restricted Subsidiaries of Parent to, make any Asset Disposition of Collateral unless:
(1i) the Company Company, Parent or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) at least equal to not less than 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 Parent’s management, or if such Asset Disposition involves consideration in excess of $15.0 million, by a resolution of the shares and assets Board of Directors set forth in an Officers’ Certificate delivered to the Trustee (including as to the value of all non-cash consideration), of the Collateral subject to such Asset Disposition;
(2ii) at least 75% of the consideration from such Asset Disposition received by the Company Company, Parent or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents and 100% of the portion of the Net Proceeds from Asset Dispositions relating to the First Priority Collateral in excess of $10.0 million in the aggregate (to the extent not applied or Replacement Assetsinvested as provided below) is deposited directly into the Collateral Account or becomes the subject of a Net Proceeds Letter of Credit promptly upon the receipt of such Net Proceeds; and
(iii) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as the First Priority Collateral to secure the Notes, in the case of an Asset Disposition of the First Priority Collateral, or as ABL Collateral, in the case of an Asset Disposition of ABL Collateral. For purposes of this clause (2)ii) of the preceding paragraph, each of the following shall be deemed to be cash:
: (a) any liabilities (as shown on the face repayment or assumption of Indebtedness secured by Liens with a priority senior or equal to the Liens in favor of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of Notes and the Company or any Restricted Subsidiary (other than contingent liabilities Note Guarantees and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company Company, Parent or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) are, within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received the disposition of Collateral, converted by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company Parent or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid into cash or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) secondCash Equivalents, to the extent of the balance cash or Cash Equivalents received in that conversion. Any Net Proceeds from any Asset Dispositions of First Priority Collateral deposited into the Collateral Account or the subject of a Net Proceeds Letter of Credit may be invested by the Company or a Guarantor in Additional Assets constituting First Priority Collateral (including, without limitation, through capital expenditures in domestic assets constituting First Priority Collateral) within 360 days of the date of the receipt of any Net Proceeds from such Asset Disposition, which Additional Assets are thereupon with their acquisition added to the First Priority Collateral securing the Notes; provided that a binding commitment entered into with such 360-day period shall be treated as a permitted application of the Net Available Cash after Proceeds so long as such Net Proceeds shall be applied to satisfy such commitment within 180 days of the date of such commitment; provided further that Additional Assets shall not include the Capital Stock of Foreign Subsidiaries for purposes of this requirement unless the relevant Asset Disposition consisted of the sale of the Capital Stock of a Foreign Subsidiary. All of the Net Proceeds received from any Recovery Event in respect of First Priority Collateral shall be deposited directly into the Collateral Account or become the subject of a Net Proceeds Letter of Credit promptly upon the receipt of such Net Proceeds and may be invested by the Company or a Guarantor in Additional Assets constituting First Priority Collateral (which may include performance of a restoration of the affected Collateral) within 360 days of the date of the receipt of any Net Proceeds from such Recovery Event, which Additional Assets are thereupon with their acquisition added to the First Priority Collateral securing the Notes; provided that a binding commitment entered into with such 360-day period shall be treated as a permitted application of the Net Proceeds so long as such Net Proceeds shall be applied to satisfy such commitment within 180 days of the date of such commitment; provided further that (x) the Company shall not be required to deposit in accordance with the Collateral Account or make the subject of a Net Proceeds Letter of Credit in an aggregate amount of $5.0 million or less and (ay) above (such balanceAdditional Assets shall not include the Capital Stock of Foreign Subsidiaries for purposes of this requirement, “Excess Proceeds”)unless the relevant Recovery Event involved the Capital Stock of a Foreign Subsidiary. Any Net Proceeds from Asset Dispositions of Collateral or Recovery Events deposited into the Collateral Account may be withdrawn, is and any Net Proceeds Letter of Credit may be reduced and/or terminated, in each case, in the amount to be invested or applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash a Guarantor in accordance with clause this Indenture. Any Net Proceeds from Asset Dispositions of Collateral or Recovery Events that are not deposited (or made subject to a Net Proceeds Letter of Credit), applied or invested as provided in this subsection (a) within the applicable timeframe or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if Collateral Documents will be deemed to constitute “Excess Collateral Proceeds.” When the aggregate amount of Excess Collateral Proceeds exceeds $50.0 10.0 million, within 30 days thereof, the Company will be required to make an offer (“Asset Collateral Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to and all holders of other Senior Pari Passu Lien Indebtedness outstanding containing provisions similar to those set forth in this Indenture with similar provisions requiring the Company respect to make an offer offers to purchase such Senior Indebtedness or redeem with the proceeds from any Asset Disposition (“Pari Passu Notes”) of sales of Collateral to purchase the maximum principal amount of the Notes and any such Pari Passu Notes Lien Indebtedness (on a pro rata basis) to which the Asset Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes Notes, plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or in this Indenture; provided, that to the agreements governing extent the Pari Passu NotesExcess Collateral Proceeds relate to Asset Dispositions of ABL Collateral, as applicablethe Company may, in each case in integral multiples of $1,000 in prior to making a Collateral Disposition Offer, make a prepayment with respect to the maximum principal amount (provided of Indebtedness and Obligations that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as is secured by ABL Collateral on a first-priority basis that may be specified prepaid out of such Excess Collateral Proceeds, at a price in cash in an amount equal to 100% of the agreements governing principal amount of such Indebtedness and Obligations, plus accrued and unpaid interest, to the Pari Passu Notesdate of prepayment, with any Excess Collateral Proceeds not used to prepay such Indebtedness offered to Holders in accordance with this paragraph. To the extent that the aggregate amount of Notes and other Pari Passu Notes Lien Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset a Collateral Disposition Offer is less than the Excess ProceedsCollateral Proceeds (after giving effect to the prepayment of Indebtedness secured on a first-priority basis in the case of an Asset Disposition of ABL Collateral), the Company may use any remaining Excess Collateral Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. If the aggregate principal amount of Notes surrendered by Holders and Pari Passu Notes validly Lien Indebtedness tendered and not properly withdrawn pursuant to such Collateral Disposition Offer exceeds the amount of Excess Collateral Proceeds, the Notes and Pari Passu Lien Indebtedness to be purchased shall be selected on a pro rata basis. Upon completion of such Collateral Disposition Offer, the amount of Excess Collateral Proceeds shall be reset at zero.
(b) the Company and Parent will not, and will not permit any Restricted Subsidiary of Parent to, make any Asset Disposition (other than Asset Dispositions of Collateral which shall be treated in the manner set forth in paragraph (a) above) unless:
(1) the Company, Parent or the Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Disposition at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) least 75% of the consideration received in the Asset Disposition by the Company, Parent or the Restricted Subsidiary, as the case may be, is in the form of cash. For purposes of this provision, each of the following will be deemed to be cash:
(A) Cash Equivalents;
(B) any liabilities, as shown on the most recent consolidated balance sheet of the Company, Parent or any Restricted Subsidiary of Parent (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed, or from which the Company, Parent or such Restricted Subsidiary of Parent is released, by the transferee of any such assets pursuant to a customary agreement that releases the Company, Parent or such Restricted Subsidiary from further liability;
(C) any securities, notes or other obligations received by the Company, Parent or any such Restricted Subsidiary from such transferee that are, within 180 days of the closing of such Asset Disposition, converted by the Company, Parent or such Restricted Subsidiary into cash or Cash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion;
(D) accounts receivable of a business retained by the Company, Parent or such Restricted Subsidiary, as the case may be, following the sale of such business, provided that such accounts receivable (i) are not past due more than 90 days and (ii) do not have a payment date greater than 120 days from the date of the invoices creating such accounts receivable; and
(E) all other forms of consideration (except cash and Cash Equivalents) received for all Asset Dispositions since the date of this Indenture to the extent that the Fair Market Value of all such other forms of consideration does not exceed in the aggregate 5% of the Consolidated Tangible Assets of Parent on a consolidated basis at the time each determination is made. Within 360 days after the receipt of any Net Proceeds from an Asset Disposition, the Company, Parent or the applicable Restricted Subsidiary, as the case may be, may apply such Net Proceeds at its option:
(1) to repay Senior Debt (and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto) and Indebtedness of the applicable Restricted Subsidiary (or any other Restricted Subsidiary that guarantees such Indebtedness), other than Indebtedness owed to the Company, Parent or a Restricted Subsidiary of Parent;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of Parent;
(3) to make capital expenditures;
(4) to acquire other assets that are used or useful in a Permitted Business or to make expenditures for maintenance, repair or improvement of existing properties and assets in accordance with the provisions of this Indenture; or
(5) any combination of the foregoing. provided that, in the case of clauses (2), (3) or (4) above, a binding commitment entered into with such 360-day period shall be treated as a permitted application of the Net Proceeds so long as such Net Proceeds shall be applied to satisfy such commitment within 180 days of the date of such commitment. Pending the final application of any Net Proceeds, the Company, Parent or the applicable Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Dispositions that are not applied or invested as provided above will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $30.0 million, within 30 days thereof, the Company will make an offer (“Asset Disposition Offer”) to all Holders and, at the Company’s option, all holders of other Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness”) containing provisions similar to those set forth in this Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem the maximum principal amount of Notes and such other Pari Passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased out of the Excess Proceeds. The offer price in any Asset Disposition Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, prepayment or redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Disposition Offer, the Company, Parent or the applicable Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other Pari Passu Indebtedness tendered in, or required to be prepaid or redeemed in, connection with, such Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and the holders, trustees or similar representatives, as the case may be, of such other Pari Passu Notes shall select the Pari Passu Notes Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of (except that any Notes represented by a note in global form will be selected by such tendered Notes and Pari Passu Notesmethod as DTC or its nominee or successor may require. Upon completion of such each Asset Disposition Offer, the amount of Excess Proceeds shall will be reset at zero. Each .
(c) The Collateral Disposition Offer or Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes other Indebtedness required to be purchased pursuant to this Section 4.15 3.05(a) and Pari Passu Indebtedness required to be purchased pursuant to Section 3.05(b) (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes (and other Indebtedness required to be purchased pursuant to the last paragraph of Section 3.05(a)) and Pari Passu Notes Indebtedness required to be purchased pursuant to Section 3.05(b), if applicable, validly tendered in response to the Asset Collateral Disposition Offer. Upon the commencement of an Offer or Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offerapplicable. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Dateinterest payment date, any accrued and unpaid interest will be paid on such Asset Disposition Purchase Date 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 Collateral Disposition Offer or Asset Disposition Offer. On Upon the commencement of a Collateral Disposition Offer or before Asset Disposition Offer, as applicable, the Company will deliver a notice to the Trustee and each of the Holders of the Notes. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Collateral Disposition Offer or Asset Disposition Offer, as applicable. The notice, which will govern the terms of the Collateral Disposition Offer or Asset Disposition Offer, as applicable, will state:
(1) that the Collateral Disposition Offer or Asset Disposition Offer is being made pursuant to this Section 3.05 and the length of time the Collateral Disposition Offer or Asset Disposition Offer will remain open;
(2) the Asset Disposition Offer Amount, the purchase price and the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes ;
(3) that any Security not tendered or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 continue 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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.accrue inter
Appears in 1 contract
Sources: Indenture (EM Holdings LLC)
Limitation on Sales of Assets and Subsidiary Stock. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:: 123
(1a) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cashincluding 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 not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) fair market value of the shares and assets subject to such Asset Disposition;, as such fair market value may be determined (and shall be determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $50,000,000) in good faith by the Board of Directors, whose determination shall be conclusive (including as to the value of all noncash consideration),
(2b) in the case of any Asset Disposition (or series of related Asset Dispositions) having a fair market value of $50,000,000 or more, at least 75% of the consideration from such therefor (excluding, in the case of an Asset Disposition (or series of related Asset Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, that are not Indebtedness) received by the Company or such Restricted Subsidiary is in the form of cash, and
(c) an amount equal to 100% of the Net Proceeds from such Asset Disposition described in clause (b) is applied by the Company (or any Restricted Subsidiary, as the case may be, is ) in accordance with the form requirements of cash or Cash Equivalents or Replacement Assets. Section 2.09(b)(iii): For the purposes of this clause (2)ii) of paragraph (b) above, each of the following shall be are deemed to be cash:
: (a1) any liabilities Temporary Cash Investments and Cash Equivalents, (as shown on 2) the face assumption of Indebtedness, other than Indebtedness that is by its terms subordinated to the Company’s or such Restricted Subsidiary’s then most recent balance sheet)Obligations, of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee release of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (b3) Indebtedness, other than Indebtedness that is by its terms subordinated to the Obligations, of any securitiesRestricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, notes or to the extent that the Company and each other obligations 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 such Restricted Subsidiary from such the transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
days, (c5) Additional Assets and (6) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such an Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (c) that is at that time outstandingclause, not to exceed an aggregate amount at any time outstanding equal to the greater of $100.0 million 164,000,000 and 5.75% of Consolidated Tangible Assets (with the Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of any conflict.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any in one or a series of related transactions, consummate an Asset Disposition unless:
Sale unless (1i) the Company (or such Restricted the Subsidiary, as the case may be, ) receives consideration (both cash and non cash) at the time of such Asset Sale at least equal to not less than the Fair Market Value fair market value (such ▇▇▇▇ ▇▇▇▇▇▇ Value as reasonably determined and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to be determined on the date of contractually agreeing to such Asset DispositionTrustee) of the shares assets or Equity Interests issued or sold or otherwise disposed of and assets subject to such Asset Disposition;
(2ii) at least 7580% of the consideration from such Asset Disposition therefor received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets. For Equivalents, PROVIDED that for purposes of this clause provision, (2), each x) the amount of the following shall be deemed to be cash:
(aA) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), sheet of the Company or any Restricted such Subsidiary (other than contingent liabilities and Subordinated Obligationsor in the notes thereto) of the Company or such Subsidiary that are assumed by the transferee of any such assets pursuant (other than liabilities that are by their terms PARI PASSU with or subordinated to a customary novation agreement that releases the Company Securities or such Restricted Subsidiary from further liability;
the guarantee of the Guarantors, as applicable) and (bB) any securities, notes securities or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (or as to which the Company or such Subsidiary has received at or prior to the consummation of the Asset Sale a commitment (which may be subject to customary conditions) from a nationally recognized investment, merchant or commercial bank to convert into cash or Cash Equivalents within 90 days of the consummation of such Asset Sale and which are thereafter actually converted into cash or Cash Equivalents within such 90-day period) will be deemed to be cash or Cash Equivalents (and shall be deemed to be Net Proceeds for purposes of the following provisions as and when reduced to cash or Cash Equivalents) to the extent of the net cash received in that conversionor Cash Equivalents realized thereon and (y) within 180 days the fair market value of the closing of such Asset Disposition; and
(c) any Designated Noncash Non-Cash Consideration received by the Company or any Restricted a Subsidiary in such any Non-Qualified Asset Disposition having an Sale shall be deemed to be cash to the extent that the aggregate Fair Market Value fair market value (as reasonably determined in good faith and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the Company), taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to any subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied received by the Company or any of its Subsidiaries since the date of this Indenture in all Non-Qualified Asset Sales does not exceed 5% of Stockholders' Equity as of the date of such Restricted Subsidiaryconsummation. Notwithstanding the foregoing, as the case may be,
(i) to the extent the Company or any Restricted Subsidiaryof its Subsidiaries receives Non-Cash Consideration as proceeds of an Asset Sale, as such Non-Cash Consideration shall be deemed to be Net Proceeds for purposes of (and shall be applied in accordance with) the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of following provisions when the Company or such Subsidiary receives cash or Cash Equivalents from a sale, repayment, exchange, redemption or retirement of a Restricted Subsidiary within or extraordinary dividend or return of capital on such Non-Cash Consideration. Within 365 days from after the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase receipt of any such Indebtedness pursuant to this clause (a)Net Proceeds from an Asset Sale, the Company or such Restricted Subsidiary will retire may apply such Indebtedness and will cause the related commitment Net Proceeds (if anyi) to be permanently reduced purchase one or more Nursing Facilities or Related Businesses and/or a controlling interest in an amount equal to the principal amount so prepaidCapital Stock of a Person owning one or more Nursing Facilities and/or one or more Related Businesses (and no other material assets), repaid or purchased, or
(ii) to the extent make a capital expenditure or to acquire other tangible assets, in each case, that are used or useful in any business in which the Company is permitted to be engaged pursuant to Section 4.17 hereof or such Restricted Subsidiary elects(iii) to permanently reduce Senior Debt (including, in the case of Senior Revolving Debt, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance correspondingly reduce commitments with (a) above (such balance, “Excess Proceeds”respect thereto), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending . Pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) aboveProceeds, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines may temporarily reduce Senior Revolving Debt. Any Net Proceeds from Asset Sales that the Net Available Cash will are not be applied or invested as provided in accordance with clause (3)(a) of the first paragraph sentence of this Section 4.15), if paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $50.0 25 million, the Company will be required to shall make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all and holders of any other Senior Indebtedness of the Company ranking senior to or on a parity with the Securities from time to time outstanding with similar provisions requiring the Company to make an offer to purchase or to redeem such Senior Indebtedness with the proceeds from any Asset Disposition Sales, pro rata in proportion to the respective principal amounts of Securities and such other Indebtedness then outstanding (“Pari Passu Notes”collectively, an "ASSET SALE OFFER") to purchase the maximum principal amount of Notes the Securities and any such Pari Passu Notes to which the Asset Disposition Offer applies other Indebtedness that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes thereof plus accrued and unpaid interest thereon and Liquidated Damages, if any, to the date of purchasepurchase (the "ASSET SALE PAYMENT"), in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu NotesSection 2.14. To the extent that the aggregate amount of Notes Securities and Pari Passu Notes so validly such other Indebtedness tendered and not properly withdrawn pursuant to an Asset Disposition Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in purposes not prohibited at the time under this Indenture. If the aggregate principal amount of Notes Securities and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer such other Indebtedness surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes Securities and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to such other Indebtedness will be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notesbasis. Upon completion of such an Asset Disposition Sale Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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 (Sun Healthcare Group Inc)
Limitation on Sales of Assets and Subsidiary Stock. The Company will (a) Holdings shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
unless (1i) the Company Holdings or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cashincluding 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 not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
, (2ii) at least 75% of the consideration from such Asset Disposition therefor received by the Company Holdings or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of cash; provided that the following shall be deemed to be cash:
cash for purposes of this clause (aii) (but not for purposes of the definition of Net Available Cash): (1) the amount of any liabilities (as shown on the face of the Company’s Holdings' or such Restricted Subsidiary’s then 's most recent balance sheet), sheet or in the notes thereto) of the Company Holdings or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligationsthat are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases assets, (2) the Company or such Restricted Subsidiary from further liability;
(b) amount of any securities, notes or other obligations securities received by the Company Holdings or any such Restricted Subsidiary from such transferee that are converted or scheduled to be converted by the Company Holdings or such Restricted Subsidiary into cash (to the extent of the cash received in that conversionor scheduled to be received) within 180 90 days of following the closing of such Asset Disposition; and
, (c3) the Fair Market Value of any Related Assets received by Holdings or any Restricted Subsidiary in such Asset Disposition and (4) any Designated Noncash Consideration received by the Company Holdings or any such Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (c4) that is at that time outstandinghas not been converted into cash or cash equivalents, not to exceed $100.0 million 10% of Consolidated Net Tangible Assets as of the end of the most recent fiscal quarter for which financial statements are publicly available or are otherwise provided pursuant to the Purchase Agreement at the time such Designated Noncash Consideration is received (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company Holdings (or such Restricted Subsidiary, as the case may be,
) (i1) first, to the extent the Company or any Restricted Subsidiary, as the case may be, Holdings elects (or is required by the terms of any Bank Indebtedness), to prepay, repay repay, redeem, purchase, repurchase, defease or purchase such Bank otherwise acquire or retire for value Indebtedness (other than obligations in respect of any Preferred Stock) of a Wholly Owned Subsidiary (in each case, other than Indebtedness owed to Holdings or an Affiliate of Holdings and other than obligations in respect of any Disqualified Stock) within 360 days of the Company or later of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, or the “Application Period”), unless to the extent receipt of such Net Available Cash is otherwise used in accordance with clause Cash; (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b2) second, to the extent of the balance of the Net Available Cash after application in accordance with clause (a1) above (such balance, “Excess Proceeds”of this Section 4.06(a)(iii), is applied by to the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company extent Holdings or such Restricted Subsidiary determines that the Net Available Cash will not be applied elects to, or enters into a binding agreement to, reinvest in accordance Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess ProceedsNet Available Cash received by, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis received by, Holdings or another Restricted Subsidiary) within 360 days of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion later of such Asset Disposition Offer, or the amount receipt of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes such Net Available Cash; and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 Company willthird, to the extent lawful, accept for payment, on a pro rata basis to of the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions balance of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company Net Available Cash after application in accordance with the terms clauses (1) and (2) of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will comply4.06(a)(iii), 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 make an Offer to purchase Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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.subject to
Appears in 1 contract
Sources: Indenture (Maxxim Medical Inc/Tx)
Limitation on Sales of Assets and Subsidiary Stock. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1a) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cashincluding 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 not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) fair market value of the shares and assets subject to such Asset Disposition;, as such fair market value may be determined (and shall be determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $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),
(2b) in the case of any Asset Disposition (or series of related Asset Dispositions) having a 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 series of related Asset Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, that are not Indebtedness) received by the Company or such Restricted Subsidiary is in the form of cash, and
(c) an amount equal to 100% of the Net Proceeds from such Asset Disposition described in clause (b) is applied by the Company (or any Restricted Subsidiary, as the case may be, is ) in accordance with the form requirements of cash or Cash Equivalents or Replacement Assets. Section 2.09(b)(iii): For the purposes of this clause (2)ii) of paragraph (b) above, each of the following shall be are deemed to be cash:
: (a1) any liabilities Temporary Cash Investments and Cash Equivalents, (as shown on 2) the face assumption of Indebtedness, other than Indebtedness that is by its terms subordinated to the Company’s or such Restricted Subsidiary’s then most recent balance sheet)Obligations, of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee release of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (b3) Indebtedness, other than Indebtedness that is by its terms subordinated to the Obligations, of any securitiesRestricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, notes or to the extent that the Company and each other obligations 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 such Restricted Subsidiary from such the transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
days, (c5) Additional Assets and (6) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such an Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (c) that is at that time outstandingclause, not to exceed an aggregate amount at any time outstanding equal to the greater of $100.0 50.0 million and 5.75% of Consolidated Tangible Assets (with the Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of any conflict.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition unless:
(1) the Company or such Restricted SubsidiarySubsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the case may beCompany, receives consideration (both cash and non cash) equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration from such Asset Disposition thereof received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets. For purposes cash equivalents; provided that the amount of this clause (2), each of the following shall be deemed to be cash:
(aA) any liabilities (as shown on the face of the Company’s 's or such Restricted Subsidiary’s then 's most recent balance sheet), sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are by their terms subordinated to the Securities), that are assumed by the transferee of any such assets pursuant to a customary novation agreement (provided that releases the Company or such Restricted Subsidiary is released from further liability;
all liability with respect thereto), (bB) any securitiesnotes, notes or other obligations or securities received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversionreceived) within 180 days of following the closing of such Asset Disposition; and
Disposition and (cC) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (cC) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $100.0 5.0 million at time of receipt of such Designated Noncash Consideration (with the Fair Market Value fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be cash for purposes of this provision and for no other purpose; and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be,)
(iA) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay repay, redeem or purchase such Bank Senior Indebtedness of the Company or Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 365 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(such period, the “Application Period”), unless B) to the extent the Company elects, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(C) to the extent of the balance of such Net Available Cash is otherwise used after application in accordance with clause clauses (iiA) and (B) of this paragraph (a)(3) of this Section 4.07, to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that, that in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (A) or (C) of this paragraph (a)) of this Section 4.07, the Company or such Restricted Subsidiary will shall permanently retire such Indebtedness and will 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, or
(ii) to . Notwithstanding the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent foregoing provisions of the balance of the Net Available Cash after application in accordance with this paragraph (a) above (such balance, “Excess Proceeds”), is applied by of this Section 4.07 the Company or such and the Restricted Subsidiary, as the case may be, toward an offer Subsidiaries will not be required to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of apply any such Net Available Cash in accordance with clause (a) or clause (b) abovethis covenant except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this covenant exceeds $15.0 million. Pending application of Net Available Cash pursuant to this Section 4.07, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash shall be invested in any manner not prohibited by this Indenture. On Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness.
(b) In the 366th day after event of an Asset Disposition that requires the purchase of the Securities (or and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) of paragraph (a) of Section 4.07, the Company will purchase Securities tendered pursuant to an offer by the Company for the Securities (and such earlier dateother Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not may be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required provided for by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”Subordinated Indebtedness) to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures (including prorating in the event of oversubscription) set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples paragraph (c) of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this IndentureSection 4.07. If the aggregate principal amount purchase price of Notes and Pari Passu Notes validly the securities tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess ProceedsNet Available Cash allotted to their purchase, the Trustee shall Company will select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes securities to be purchased on a pro rata basis on but in round denominations, which in the basis case of the aggregate Securities will be denominations of EURO 1,000 principal amount of such tendered Notes and Pari Passu Notesor multiples thereof. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds The Company shall not be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased make such an Offer to purchase Securities (and other Senior Subordinated Indebtedness) pursuant to this Section 4.15 (4.07 if the “Asset Disposition Offer Amount”) or, if Net Available Cash available therefor is less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response $15.0 million (which lesser amount shall be carried forward for purposes of determining whether such an offer is required with respect to the Net Available Cash from any subsequent Asset Disposition Offer. Upon Disposition).
(1) Promptly, and in any event within 10 days after the commencement of Company becomes obligated to make an Asset Disposition Offer, the Company shall send, by first class mail, a notice be obligated to deliver to the Trustee and send, by first-class mail to each Holder, and, as long as the Securities are listed on the Luxembourg Stock Exchange, publish in a Luxembourg newspaper of general circulation, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as hereinafter described in the event the Offer is oversubscribed) in integral multiples of EURO 1,000 of principal amount, at its registered addressthe applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (i) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (ii) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (iii) if material, appropriate pro forma financial information) and all instructions and materials necessary to enable such Holder to tender Notes Securities pursuant to the Asset Disposition Offer. Any Asset Disposition , together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall be made deliver to all Holders. The notice, which shall govern the terms Trustee an Officers' Certificate as to (i) the amount of the Asset Disposition OfferOffer (the "Offer Amount"), shall state:
(1ii) that the allocation of the Net Available Cash from the Asset Disposition Dispositions pursuant to which such Offer is being made pursuant and (iii) the compliance of such allocation with the provisions of paragraph (a) of Section 4.07. On such date, the Company shall also irrevocably deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;4.07.
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note Security purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the NoteSecurity, with the an appropriate form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes duly completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent Company at the address specified in the notice at least three days before Business Days prior to the Asset Disposition Purchase Date;
(7) that . Holders shall be entitled to withdraw their election if the Company, the Depository Trustee or the Paying Agent, as the case may be, receives, Company receives not later than the second business day one Business Day prior to the Asset Disposition Purchase Date, a notice telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note Security purchased;
(8) that, if . If at the expiration of the Offer Period the aggregate principal amount of Notes Securities (and any other Senior Subordinated Indebtedness included in the Offer) surrendered by Holders holders thereof exceeds the Asset Disposition Offer Amount, the Company shall select the Notes Securities and the other Senior Subordinated Indebtedness to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes Securities and the other Senior Subordinated Indebtedness in denominations of $EURO 1,000, or integral multiples thereof, shall be purchased);
(9) that . Holders whose Notes were Securities are purchased only in part shall be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer); andSecurities surrendered.
(104) all other procedures, if any, determined by At the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in time the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid Company delivers Securities to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will Trustee which are to be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Dateaccepted for purchase, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will also deliver to the Trustee an Officers’ ' Certificate stating that such Notes or portions thereof were Securities are to be accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.15 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu NotesSection. 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company A Security shall be deemed to have sold been accepted for purchase at the properties and assets of time the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15Trustee, and shall comply with directly or through an agent, mails or delivers payment therefor to the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. surrendering Holder.
(d) The Company will comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes Securities pursuant to this Section 4.154.07. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.154.07, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture Section 4.07 by virtue of any conflictits compliance with such securities laws or regulations.
Appears in 1 contract
Sources: Indenture (Gutbusters Pty LTD)
Limitation on Sales of Assets and Subsidiary Stock. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1a) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cashincluding 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 not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) fair market value of the shares and assets subject to such Asset Disposition;, as such fair market value may be determined (and shall be determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $50,000,000) in good faith by the Board of Directors, whose determination shall be conclusive (including as to the value of all noncash consideration),
(2b) in the case of any Asset Disposition (or series of related Asset Dispositions) having a fair market value of $50,000,000 or more, at least 75% of the consideration from such therefor (excluding, in the case of an Asset Disposition (or series of related Asset Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, that are not Indebtedness) received by the Company or such Restricted Subsidiary is in the form of cash, and
(c) an amount equal to 100% of the Net Proceeds from such Asset Disposition described in clause (b) is applied by the Company (or any Restricted Subsidiary, as the case may be, is ) in accordance with the form requirements of cash or Cash Equivalents or Replacement Assets. Section 2.09(b)(iii): For the purposes of this clause (2)ii) of paragraph (b) above, each of the following shall be are deemed to be cash:
: (a1) any liabilities Temporary Cash Investments and Cash Equivalents, (as shown on 2) the face assumption of Indebtedness, other than Indebtedness that is by its terms subordinated to the Company’s or such Restricted Subsidiary’s then most recent balance sheet)Obligations, of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee release of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (b3) Indebtedness, other than Indebtedness that is by its terms subordinated to the Obligations, of any securitiesRestricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, notes or to the extent that the Company and each other obligations 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 such Restricted Subsidiary from such the transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
days, (c5) Additional Assets and (6) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such an Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (c) that is at that time outstandingclause, not to exceed an aggregate amount at any time outstanding equal to the greater of $100.0 million 164,000,000 and 5.75% of Consolidated Tangible Assets (with the Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of any conflict.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1i) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cashincluding 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 not less than the Fair Market Value fair market value, as determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a resolution of the Board of Directors (such ▇▇▇▇ ▇▇▇▇▇▇ Value including as to be determined on the date value of contractually agreeing to such Asset Disposition) all noncash consideration), of the shares and assets subject to such Asset Disposition;
(2ii) at least 7580% of the consideration from such Asset Disposition thereof received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash; PROVIDED, HOWEVER, that in respect of an Asset Disposition, more than 20% of the consideration may consist of consideration other than cash or Cash Equivalents cash equivalents if (A) the portion of such consideration that does not consist of cash or Replacement Assets. For purposes cash equivalents consists of this clause (2), each assets of a type ordinarily used in the following shall be deemed to be cash:
(a) any liabilities (as shown on the face operation of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), 's distribution business (including Capital Stock of the Company or any a Person that becomes a Restricted Subsidiary (other than contingent liabilities and Subordinated Obligationsthat holds such assets) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received be used by the Company or any such a Restricted Subsidiary from in the conduct of the Company's business, (B) the terms of such transferee that are converted Asset Disposition have been approved by a majority of the members of the Board of Directors having no personal stake in such transaction, and (C) if the value of the assets being disposed of by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value transaction (as determined in good faith by such members of the Board of Directors) is at least $15 million, the Board of Directors has received a written opinion of a nationally recognized investment banking firm to the Company)effect that such Asset Disposition is fair, taken together with all other Designated Noncash Consideration received pursuant from a financial point of view, to this clause (c) that is at that time outstanding, not the Company and the Company has delivered a copy of such opinion to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value)Trustee; and
(3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be,
) (iA) FIRST, to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank IndebtednessSenior Indebtedness or Indebtedness (other than Preferred Stock) of a Wholly Owned Subsidiary), to prepay, repay or purchase Senior Indebtedness or such Bank Indebtedness of (in each case other than Indebtedness owed to the Company or an Affiliate of a Restricted Subsidiary the Company) within 365 360 days from after the later of the date of such Asset Disposition or the receipt of such Net Available Cash; (such periodB) SECOND, the “Application Period”), unless to the extent such of the balance of Net Available Cash is otherwise used after application in accordance with clause (iiA), 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 360 days from the later of such Asset Disposition or the receipt of such Net Available Cash; provided(C) THIRD, howeverto the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), thatto make an Offer (as defined below) to purchase Securities pursuant to and subject to the conditions set forth in section (b) of this Section, and (D) FOURTH, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C), to fund (to the extent consistent with any other applicable provision of this Indenture) any corporate purpose; PROVIDED, HOWEVER, that in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a)A) or (C) above, the Company or such Restricted Subsidiary will shall retire such Indebtedness and will 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, or
(ii) to the extent the Company or such and the Restricted Subsidiary elects, Subsidiaries shall not be required to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of apply any such Net Available Cash in accordance with clause (a) or clause (b) above, this Section except to the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this Section exceed $500,000. For the purposes of Section 4.06(a)(ii), the following are deemed to be cash: (x) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any manner not prohibited by this Indenture. On Restricted Subsidiary and the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors release of the Company or such Restricted Subsidiary determines from all liability on such Indebtedness in connection with such Asset Disposition and (y) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities pursuant to Section (a)(iii)(C), the Company shall be required to purchase Securities tendered pursuant to an offer by the Company for the Securities (the "Offer") at a purchase price of 100% of their principal amount plus accrued interest to the date of purchase in accordance with the procedures (including prorationing in the event of oversubscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities tendered pursuant to the Offer is less than the Net Available Cash will not be applied allotted to the purchase of the Securities, the Company shall apply the remaining Net Available Cash in accordance with clause (3)(a) of the first paragraph of this Section 4.154.06(a)(iii)(D), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the . The Company will shall not be required to make an offer Offer for Securities pursuant to this Section if the Net Available Cash available therefor (“Asset Disposition Offer”after application of the proceeds as provided in clauses (A) to all Holders and (B) of Notes and, Section 4.06(a)(iii)) is less than $5 million (which lesser amount shall be carried forward for purposes of determining whether an Offer is required with respect to the extent required by the terms of other Senior IndebtednessNet Available Cash from any subsequent Asset Disposition).
(1) Promptly, to all holders of other Senior Indebtedness outstanding with similar provisions requiring and in any event within 10 days after the Company becomes obligated to make an offer Offer, the Company shall be obligated to purchase such Senior 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest deliver to the date of purchaseTrustee 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 accordance with whole or in part (subject to prorationing as hereinafter described in the procedures set forth herein or event the agreements governing the Pari Passu Notes, as applicable, in each case Offer is oversubscribed) in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in at the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, by first class mail, a notice to the Trustee and to each Holder at its registered addressprice. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes shall enable such Holders to make an informed decision (which at a minimum shall include (i) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (ii) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (iii) if material, appropriate pro forma financial information) and all instructions and materials necessary to enable such Holder to tender Notes Securities pursuant to the Asset Disposition Offer. Any Asset Disposition , together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided above, the Company shall be made deliver to all Holders. The notice, which shall govern the terms Trustee an Officers' Certificate as to (i) the amount of the Asset Disposition OfferOffer (the "Offer Amount"), shall state:
(1ii) that the allocation of the Net Available Cash from the Asset Disposition Dispositions pursuant to which such Offer is being made pursuant to this Section 4.15;
and (2iii) the Asset Disposition compliance of such allocation with the provisions of Section 4.06(a). On such date, the Company shall also irrevocably deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust) in Temporary Cash Investments an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancelation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Asset Disposition Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the Purchase Date;, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section.
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note Security purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the NoteSecurity, with the an appropriate form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes duly completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent Company at the address specified in the notice at least three days before Business Days prior to the Asset Disposition Purchase Date;
(7) that . Holders shall be entitled to withdraw their election if the Company, the Depository Trustee or the Paying Agent, as the case may be, receives, Company receives not later than the second business day one Business Day prior to the Asset Disposition Purchase Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note Security which was delivered by the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note Security purchased;
(8) that, if . If at the expiration of the Offer Period the aggregate principal amount of Notes Securities surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes Securities to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes Securities in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) that . Holders whose Notes were Securities are purchased only in part shall be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer); andSecurities surrendered.
(104) all other procedures, if any, determined by At the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in time the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid Company delivers Securities to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will Trustee which are to be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Dateaccepted for purchase, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will also deliver to the Trustee an Officers’ ' Certificate stating that such Notes or portions thereof were Securities are to be accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.15 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu NotesSection. 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company A Security shall be deemed to have sold been accepted for purchase at the properties and assets of time the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15Trustee, and shall comply with directly or through an agent, mails or delivers payment therefor to the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. surrendering Holder.
(d) The Company will shall comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes Securities pursuant to this Section 4.15Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15Section, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Indenture Section by virtue thereof.
(e) The Company shall not, and shall not permit any Restricted Subsidiary to, make any Financing Disposition in connection with a Receivables Financing unless the Board of any conflictDirectors shall have determined in good faith, which determination shall be conclusive and evidenced by a resolution of the Board of Directors, that such Financing Disposition is made at fair market value.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any consummate an Asset Disposition Sale unless:
(1) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration (both cash and non cash) at the time of the Asset Sale at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on measured as of the date of contractually agreeing the definitive agreement with respect to such Asset DispositionSale) of the shares and assets subject to such Asset Disposition;or Equity Interests issued or sold or otherwise disposed of; and
(2) either (x) at least 75% of the consideration from such Asset Disposition therefor received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets. For a combination thereof or (y) the Fair Market Value of the aggregate of all consideration other than cash or Cash Equivalents for all Asset Sales since the Issue Date would not exceed 5% of Consolidated Tangible Assets of the Company after giving effect to such Asset Sales; provided that any of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2), each of the following shall be deemed to be cash:):
(a) other than with respect to an Asset Sale of Collateral, the assumption or forgiveness of any liabilities (as shown on the face of the Company’s or such the Restricted Subsidiary’s then most recent balance sheet), ) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and Subordinated Obligations) that are assumed by their terms subordinated to Notes issued under this Indenture or any Subsidiary Guarantee) by the transferee of any such assets pursuant to a customary novation or other release or repurchase agreement that releases the Company or such the Restricted Subsidiary from further liability;
(b) any securities, notes Notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such the Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Dispositionor Cash Equivalents received); and
(c) other than with respect to an Asset Sale of Collateral, any Designated Noncash Consideration received by the Company stock or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) assets that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value)constitute Replacement Assets; and
(3) an amount equal the Net Proceeds from any such Asset Sale of Collateral is paid directly by the purchaser thereof to 100% the Collateral Agent to be held in a Collateral Account for application in accordance with this covenant. Notwithstanding the foregoing provisions of the above paragraph, the Company and its Restricted Subsidiaries will not be required to cause any Net Available Cash Proceeds to be held in a Collateral Account in accordance with clause (3) of the above paragraph except to the extent the aggregate Net Proceeds from such all Asset Disposition:Sales of Collateral that would then be held in a Collateral Account exceed $15.0 million.
(ab) firstWithin 365 days after the receipt of any Net Proceeds from an Asset Sale or, is applied by if the Company has entered into a binding commitment or commitments with respect to any of the actions described in clauses (1)(b) or (2)(a)-(d) below, within the later of (x) 360 days after the receipt of any Net Proceeds from an Asset Sale or (y) 180 days after the entering into of such commitment or commitments, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1) with respect to Asset Sales of Collateral,
(ia) to repay, redeem, repurchase or otherwise retire the extent Notes or any other Priority Lien Debt (or any combination thereof); provided that if the Company or any Restricted SubsidiarySubsidiary shall so repay, as redeem or reduce any Priority Lien Debt other than the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a)Notes, the Company or such Restricted Subsidiary will retire redeem or equally and ratably repurchase (or offer to repurchase) the Notes as provided either, at the Company’s option, under “—Optional Redemption,” through open-market purchases (to the extent such Indebtedness and will cause purchases are at a purchase price at or above 100% of the related commitment (principal amount thereof plus accrued but unpaid interest, if any) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer (as defined below)) to be permanently reduced in an amount equal all Holders to purchase their Notes at 100% of the principal amount so prepaidthereof, repaid or purchasedplus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid to the date of such repurchases; or
(iib) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Periodthat would constitute Collateral; and
(b2) second, with respect to the extent Asset Sales other than an Asset Sale of the balance of the Net Available Cash after application in accordance with Collateral,
(a) above (such balance, “Excess Proceeds”), is applied by to acquire all or substantially all of the Company properties or such Restricted Subsidiaryassets of a Person primarily engaged in a Permitted Business if, as a result of such acquisition, such Person becomes a Restricted Subsidiary of the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause Company;
(b) aboveto acquire any Capital Stock of a Person operating a Permitted Business if, after giving effect to such acquisition, such Person operating a Permitted Business is or becomes a Restricted Subsidiary of the Company and Company;
(c) to make capital expenditures in respect of the Company’s or its Restricted Subsidiaries may temporarily reduce Subsidiaries’ Permitted Business or make an Investment in Replacement Assets;
(d) to acquire other assets that are used or useful in a Permitted Business or make an Investment in assets that will be used or useful in a Permitted Business; or
(e) to repay or retire Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such any Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) other than subordinated Indebtedness or Indebtedness owed to an Affiliate of the first paragraph of this Company).
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.15), if 3.5(b) above shall be deemed to constitute “Excess Proceeds.” Within 10 business days after the aggregate amount of Excess Proceeds exceeds $50.0 20.0 million, or earlier at the Company’s option, the Company will be required to make an offer to the Holders of Notes issued thereunder and the holders of any other Priority Lien Debt that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Disposition Sale Offer”) to all purchase on a pro rata basis (with the Excess Proceeds prorated between the Holders of the Notes and, to the extent required by the terms of other Senior Indebtedness, to all and such holders of such other Senior Indebtedness Priority Lien Debt based upon outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”aggregate principal amounts) to purchase the maximum principal amount of the Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies other Priority Lien Debt that may be purchased or prepaid, as applicable, out of the prorated Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes thereof plus accrued and unpaid interest to thereon to, but not including, the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notesbelow. To the extent that the aggregate principal amount of the Notes and Pari Passu Notes so validly other Priority Lien Debt tendered (and not properly withdrawn electing to be redeemed or repaid, as applicable) pursuant to an Asset Disposition Sale Offer is less than the Excess Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Proceeds for general corporate purposes, subject to purposes and any other covenants contained in purpose not prohibited by this Indenture. If the aggregate principal amount of the Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer such other Priority Lien Debt surrendered by holders thereof exceeds the amount of the prorated Excess Proceeds, the Trustee Company shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes such other Priority Lien Debt to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notesbasis. Upon completion of such each Asset Disposition Sale Offer, the amount of Excess Proceeds shall be reset at zero. Each The Company will publicly announce the results of the Asset Disposition Sale Offer on or as soon as practicable after the date such Asset Sale Offer is completed. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 3.5, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this covenant by virtue of the Company’s compliance with such securities laws or regulations.
(d) Any Asset Sale Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Sale Offer Period”). No later than five Business Days after the termination of the Asset Disposition Sale Offer Period (the “Asset Disposition Sale Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes such other Priority Lien Debt as may be required to be purchased pursuant to this Section 4.15 3.5 (the “Asset Disposition Sale Offer Amount”) or, if less than the Asset Disposition Sale Offer Amount has been so validly tenderedtendered and not properly withdrawn, all Notes and Pari Passu Notes such other Priority Lien Debt validly tendered and not properly withdrawn in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Sale Offer. If the Asset Disposition Sale Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest 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 additional further interest will be payable to Holders who tender Notes pursuant to the Asset Disposition Sale Offer. On or before the Asset Disposition Sale Purchase Date, the Company will, to the extent lawful, accept for payment, to the extent necessary on a pro rata basis to as described above (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the extent necessaryTrustee, a method that most nearly approximates pro rata selection as the Asset Disposition Offer Amount Trustee deems fair and appropriate unless otherwise required by law), Notes and such other Priority Lien Debt or portions of Notes and Pari Passu Notes or portions of such Notes and Pari Passu Notes other Priority Lien Debt so validly tendered and not properly withdrawn pursuant to the Asset Disposition Sale Offer, or if less than the Asset Disposition Sale Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Notes such other Priority Lien Debt so validly tendered and not properly withdrawn, in each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000; provided that if, following the repurchase of a portion of a Note, the remaining principal amount (provided that the unpurchased portion of any such Note shall not outstanding immediately after such repurchase would be less than $2,000 in 2,000, then the portion of such Note so repurchased shall be reduced such that the remaining principal amount) or, in the case amount of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing Note outstanding immediately after such Pari Passu Notesrepurchase is $2,000. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 3.5 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notesother Priority Lien Debt. The Company or the Paying Agentpaying 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 Sale Offer Period) mail (or otherwise deliver in accordance with the applicable procedures of DTC) to each tendering Holder of Notes or holder or lender of Pari Passu Notessuch other Priority Lien Debt, as the case may be, an amount equal to the purchase price of the Notes or Pari Passu Notes such other Priority Lien Debt 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 Note, and the Trustee, upon delivery of an Officers’ Certificate authentication order from the Company, 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 thereofof $2,000. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Notessuch other Priority Lien Debt. Any Note 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 or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of any conflict.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will Issuer shall not, and will shall not permit any of its the Restricted Subsidiaries to, make any consummate an Asset Disposition Disposition, unless:
(1) the Company Issuer or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) at the time of such Asset Disposition at least equal to not less than the Fair Market Value of the assets sold or otherwise disposed of (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on measured as of the date of contractually agreeing the definitive agreement with respect to such Asset Disposition) of the shares and assets subject to such Asset Disposition;); and
(2) at least 75% of the consideration from such Asset Disposition therefor received by the Company Issuer or such Restricted Subsidiary, as the case may bebe (which, for purposes of this clause (2), consideration will not include any contingent payment obligations related to such Asset Disposition, including, earn-out payments, purchase price adjustments and deferred purchase price payments), is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of Equivalents; provided that the following shall be deemed to be cashamount of:
(aA) any liabilities (liabilities, as shown on the face of the CompanyIssuer’s or such Restricted Subsidiary’s then most recent balance sheet)sheet or in the notes thereto, of the Company Issuer or any of its Restricted Subsidiary Subsidiaries (other than contingent liabilities and Subordinated Obligationsliabilities that are by their terms subordinated to the Notes) (i) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases and from which the Company Issuer or such Restricted Subsidiary from further liabilityhas been validly released by all creditors in writing, or (ii) in respect of which neither the Issuer nor any Restricted Subsidiary following such Asset Disposition has any obligation;
(bB) any securities, notes securities or other obligations received by the Company Issuer or any such Restricted Subsidiary from such transferee that are converted by the Company Issuer or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash received in that conversionor Cash Equivalents received) within 180 days of following the closing of such Asset Disposition;
(C) any Capital Stock, properties or assets of the kind referred to in Section 4.11(b)(2);
(D) cash held in escrow as security for any purchase price settlement, for damages in respect of a breach of representations and warranties or covenants or for payment of other contingent obligations in connection with such Asset Disposition; and
(cE) any Designated Noncash Consideration received by the Company Issuer or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (cE) that is at that time outstanding, not to exceed the greater of (x) $100.0 20.0 million and (y) 1.5% of the Total Assets of the Issuer at the time of the receipt of such Designated Noncash Consideration, with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value); and, in each case, shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(3b) an amount equal to 100% Within 365 days after the receipt of the any Net Available Cash from such Proceeds of any Asset Disposition:
(a) first, is applied by the Company Issuer or such Restricted Subsidiary, as at its option, may apply the case may beNet Cash Proceeds from such Asset Disposition to one or more of the following, or any combination,
(i1) to reduce or repay:
(A) First Lien Claims (provided, that if the Issuer or any Restricted Subsidiary shall so reduce First Lien Claims other than the Notes, the Issuer will equally and ratably reduce Obligations under the Notes) and to the extent the Obligations under the Notes are reduced or repaid, they shall be reduced or repaid in accordance with Section 3.07, through open market purchases of the Notes (provided, that such purchases are at or above 100% of the principal amount thereof), or through an offer to purchase Notes (in accordance with the procedures set forth below for an Asset Disposition Offer (as defined below)); provided, that all Net Cash Proceeds used to make such an offer to purchase shall be deemed to have been so applied whether or not accepted by the Holders;
(B) to the extent the Company property that is subject to such Asset Disposition was sold by a non-Guarantor Subsidiary, Indebtedness of a non-Guarantor Subsidiary, other than Indebtedness owed to the Issuer or any another Restricted Subsidiary, as ; or
(2) to make (A) an Investment in any one or more businesses; provided that such Investment in any business is in the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness form of the Company or acquisition of Capital Stock of a Restricted Subsidiary within 365 days or results in the Issuer or its Restricted Subsidiaries owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary; provided further, that if such Asset Disposition is of Collateral and such Restricted Subsidiary is not already a Guarantor, such Restricted Subsidiary shall become a Guarantor and the assets that are the subject of such Investment shall at the time of such Investment constitute Collateral to the extent they are not Excluded Rigs, (B) capital expenditures in respect of the Issuer, its Restricted Subsidiaries or their respective assets or (C) acquisitions of other properties or assets to be held by the Issuer or its Restricted Subsidiaries (including assets that replace the business, properties and assets of the Issuer or any of its Restricted Subsidiaries that were the subject of such Asset Disposition), in the case of each of (A), (B) and (C), used or useful in a Related Business; provided, that if such Asset Disposition is of Collateral, in each case the property subject to such acquisitions shall at the time of such acquisitions constitute Collateral to the extent such property is not an Excluded Rig; or provided that a binding commitment to apply Net Cash Proceeds as set forth in Section 4.11(b) shall be treated as a permitted application of the Net Cash Proceeds from the date of such Asset Disposition (such period, commitment so long as the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company Issuer or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will retire be applied to satisfy such Indebtedness and will cause commitment within 180 days of the related commitment end of such 365-day period (if anyan “Acceptable Commitment”) to be permanently reduced and, in an amount equal to the principal amount so prepaidevent any Acceptable Commitment is later cancelled or terminated for any reason before the Net Cash Proceeds are applied in connection therewith, repaid or purchased, or
(ii) to then the extent the Company Issuer or such Restricted Subsidiary electsshall be permitted to apply the Net Cash Proceeds in any manner set forth above before the expiration of such 180-day period and, in the event the Issuer or such Restricted Subsidiary fails to invest in Replacement Assets do so, then such Net Cash Proceeds shall constitute Excess Proceeds (as defined below).
(c) Any Net Cash Proceeds from an Asset Disposition that are not invested or applied as provided and within the applicable Application Period; and
(btime period set forth in Section 4.11(b) second, will be deemed to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, constitute “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward . The Issuer shall make an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors all Holders of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause Notes (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to and all holders of other Senior Additional First Lien Indebtedness outstanding containing provisions similar to those set forth in this Indenture with similar provisions requiring the Company respect to make an offer offers to purchase such Senior Indebtedness purchase, prepay or redeem with the proceeds from any Asset Disposition (“Pari Passu Notes”) of sales of assets to purchase purchase, prepay or redeem the maximum aggregate principal amount of the Notes (equal to $2,000 or integral multiples of $1,000 in excess thereof) and any such Pari Passu Notes to which Additional First Lien Indebtedness (plus all accrued interest on such Indebtedness and the Asset Disposition Offer applies amount of all fees and expenses, including premiums, incurred in connection therewith), that may be purchased out of the Excess Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event such Notes or Additional First Lien Indebtedness were issued with original issue discount, 100% of the Notes and Pari Passu Notes accreted value thereof), plus accrued and unpaid interest to, but not including, the date fixed for the closing of such offer (subject to the rights of Holders on the relevant record date of purchaseto receive interest due on the relevant interest payment date), in accordance with the procedures set forth herein in this Indenture or the agreements governing the Pari Passu Notessuch Additional First Lien Indebtedness, as applicable. The Issuer shall commence an Asset Disposition Offer with respect to Excess Proceeds within 30 days after the date that Excess Proceeds exceed $30.0 million by delivering the notice required pursuant to Section 3.10, in each case in integral multiples with a copy to the Trustee. The Issuer may, at its election, satisfy the foregoing obligations with respect to any Net Cash Proceeds from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Cash Proceeds prior to the expiration of $1,000 in principal amount the relevant 365-day period (or such longer period provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amountabove).
(d) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly Additional First Lien Indebtedness tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in any purpose not prohibited by this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer Additional First Lien Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees applicable agent or similar representatives, as the case may be, of Pari Passu Notes Issuer shall select the Pari Passu Notes such Additional First Lien Indebtedness to be purchased on a pro rata basis based on the basis of the aggregate accreted value or principal amount of the Notes tendered (with adjustments as necessary so that no Notes will be repurchased in part in an unauthorized denomination) or such tendered Notes and Pari Passu NotesAdditional First Lien Indebtedness tendered. Upon completion of any such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to that resulted in the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 pursuant to the Asset Disposition Offer. Any Asset Disposition Offer shall be made reset to all Holders. The notice, which shall govern the terms of the Asset Disposition Offer, shall state:zero.
(1e) Pending the final application of any Excess Proceeds, the Issuer (or the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Excess Proceeds in any manner that the Asset Disposition Offer is being made pursuant to not prohibited by this Section 4.15;Indenture.
(2f) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and Issuer shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will comply, to the extent applicable, with the requirements of Rule 14(e) of 14e-l 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 the Notes pursuant to this Section 4.15an Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.15Indenture, the Company will Issuer shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof. Notwithstanding anything to the contrary in this Section 4.11, the Issuer shall not, and shall not permit any Restricted Subsidiary, directly or indirectly, to consummate any Asset Disposition that would result in a violation of any conflictSection 4.22.
Appears in 1 contract
Sources: Indenture
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition of Collateral unless:
(1i) the Company or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition) ), as determined in good faith by the Company’s management, or if such Asset Disposition involves consideration in excess of $10.0 million, by a resolution of the shares and assets Board of Directors set forth in an Officers’ Certificate delivered to the Trustee (including as to the value of all non-cash consideration), of the Collateral subject to such Asset Disposition;
(2ii) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents and 100% of the portion of the Net Proceeds from Asset Dispositions relating to the First Priority Collateral in excess of $5.0 million in the aggregate (to the extent not applied or Replacement Assetsinvested as provided below) is deposited directly into the Collateral Account; and
(iii) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as the First Priority Collateral to secure the Notes, in the case of an Asset Disposition of the First Priority Collateral, or as ABL Collateral, in the case of an Asset Disposition of ABL Collateral. For purposes of clause (ii) of the preceding paragraph, the following shall be deemed to be cash: (a) the repayment or assumption of Indebtedness secured by Liens with a priority to the Liens in favor of the Notes and the Note Guarantees and (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the disposition of Collateral, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents, to the extent of the cash or Cash Equivalents (of the variety described in clauses (1) through (7) of the definition thereof) received in that conversion. Any Net Proceeds deposited into the Collateral Account from any Asset Dispositions of First Priority Collateral may be withdrawn to be invested by the Company or a Guarantor in Additional Assets constituting First Priority Collateral (including, without limitation, through capital expenditures in domestic assets constituting First Priority Collateral) within 360 days of the date of such Asset Disposition, which Additional Assets are thereupon with their acquisition added to the First Priority Collateral securing the Notes; provided that Additional Assets shall not include the Capital Stock of Foreign Subsidiaries for purposes of this requirement unless the relevant Asset Disposition consisted of the sale of the Capital Stock of a Foreign Subsidiary. All of the Net Proceeds received from any Recovery Event in respect of First Priority Collateral shall be deposited directly into the Collateral Account and may be withdrawn to be invested by the Company or a Guarantor in Additional Assets constituting First Priority Collateral (which may include performance of a restoration of the affected Collateral) within 360 days of the date of such Recovery Event, which Additional Assets are thereupon with their acquisition added to the First Priority Collateral securing the Notes; provided that (x) the Company shall not be required to deposit in the Collateral Account the Net Proceeds in an aggregate amount of $5.0 million or less and (y) Additional Assets shall not include the Capital Stock of Foreign Subsidiaries for purposes of this requirement. The Company and the Guarantors shall not reinvest the proceeds of Asset Dispositions of ABL Collateral in the Capital Stock of Foreign Subsidiaries. Any Net Proceeds from Asset Dispositions of Collateral or Recovery Events that are not applied or invested as provided in this subsection (a) or in accordance with the Collateral Documents will be deemed to constitute “Excess Collateral Proceeds.” On or before the 361st day after an Asset Disposition or Recovery Event pursuant to this subsection (a), if the aggregate amount of Excess Collateral Proceeds exceeds $10.0 million, the Company will be required to make an offer (“Collateral Disposition Offer”) to all Holders of Notes and all holders of other Pari Passu Lien Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of Collateral to purchase the maximum principal amount of the Notes and such Pari Passu Lien Indebtedness (on a pro rata basis) to which the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in this Indenture in integral multiples of $1,000; provided that no Notes of $2,000 or less can be repurchased in part; provided, further, that to the extent the Excess Collateral Proceeds relate to Asset Dispositions of ABL Collateral, the Company may, prior to making a Collateral Disposition Offer, make a prepayment with respect to the maximum principal amount of Indebtedness that is secured by such Collateral on a first-priority basis that may be prepaid out of such Excess Collateral Proceeds, at a price in cash in an amount equal to 100% of the principal amount of such Indebtedness, plus accrued and unpaid interest, to the date of prepayment, with any Excess Collateral Proceeds not used to prepay such Indebtedness offered to Holders in accordance with this paragraph. To the extent that the aggregate amount of Notes and other Pari Passu Lien Indebtedness so validly tendered and not properly withdrawn pursuant to a Collateral Disposition Offer is less than the Excess Collateral Proceeds (after giving effect to the prepayment of Indebtedness secured on a first-priority basis in the case of an Asset Disposition of ABL Collateral), the Company may use any remaining Excess Collateral Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. If the aggregate principal amount of Notes surrendered by Holders and Pari Passu Lien Indebtedness tendered into such Collateral Disposition Offer exceeds the amount of Excess Collateral Proceeds, the Notes and Pari Passu Lien Indebtedness to be purchased shall be selected on a pro rata basis. Upon completion of such Collateral Disposition Offer, the amount of Excess Collateral Proceeds shall be reset at zero.
(b) The Company will not, and will not permit any Restricted Subsidiary to, make any Asset Disposition (other than Asset Dispositions of Collateral which shall be treated in the manner set forth in paragraph (a) above) unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Disposition at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) at least 75% of the consideration received in the Asset Disposition by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this clause (2)provision, each of the following shall will be deemed to be cash:
(a) Cash Equivalents;
(b) any liabilities (liabilities, as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent consolidated balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligationsliabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(bc) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are are, within 180 days of the Asset Disposition, converted by the Company or such Restricted Subsidiary into cash (or Cash Equivalents, to the extent of the cash or Cash Equivalents (of the variety described in clauses (1) through (7) of the definition thereof) received in that conversion) within 180 days of the closing of such Asset Disposition; and
(cd) any Designated Noncash Consideration received by stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this Section 3.5. Within 360 days after the receipt of any Net Proceeds from an Asset Disposition subject to this Section 3.5(b), the Company (or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such applicable Restricted Subsidiary, as the case may be,) may apply such Net Proceeds at its option:
(i1) to the extent the Company or any Restricted Subsidiary, as the case may be, elects repay Senior Debt (or is required by the terms of any Bank Indebtedness), and to prepay, repay or purchase such Bank correspondingly reduce commitments with respect thereto) and Indebtedness of the applicable Restricted Subsidiary of the Company (if such Restricted Subsidiary is not a Guarantor);
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary within 365 days from of the date of such Asset Disposition Company;
(such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any3) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, make a capital expenditure; or
(ii4) to the extent the Company acquire other assets that are not classified as current assets under GAAP and that are used or such Restricted Subsidiary elects, to invest useful in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending a Permitted Business. Pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) aboveProceeds, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness revolving credit borrowings or otherwise invest such the Net Available Cash Proceeds in any manner that is not prohibited by this Indenture. On the 366th day after an Any Net Proceeds from Asset Disposition (Dispositions that are not applied or such earlier date, if any, invested as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash provided above will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $50.0 15.0 million, within 15 days thereof, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to and all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness that is pari passu with the proceeds from any Asset Disposition Notes (“Pari Passu NotesIndebtedness”) containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and any such other Pari Passu Notes to which the Asset Disposition Offer applies Indebtedness that may be purchased out of the Excess Proceeds, at an . The offer price in cash in an amount any Asset Disposition Offer will be equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest and Special Interest, if any, to the date of purchase, and will be payable in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples cash. If any Excess Proceeds remain after consummation of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess ProceedsOffer, the Company may use any remaining those Excess Proceeds for general corporate purposes, subject to other covenants contained in any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other Pari Passu Notes validly Indebtedness tendered and not properly withdrawn pursuant to an into such Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and the holders, trustees or similar representatives, as the case may be, of such other Pari Passu Notes shall select the Pari Passu Notes Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notesbasis. Upon completion of such each Asset Disposition Offer, the amount of Excess Proceeds shall will be reset at zero. Each .
(c) The Collateral Disposition Offer or Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes (and other Indebtedness required to be purchased pursuant to the last paragraph of Section 3.5(a)) and Pari Passu Notes Indebtedness required to be purchased pursuant to this Section 4.15 3.5 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes (and other Indebtedness required to be purchased pursuant to the last paragraph of Section 3.5(a)) and Pari Passu Notes Indebtedness, if applicable, validly tendered in response to the Collateral Disposition Offer or Asset Disposition Offer, as applicable. 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 on such Asset Disposition Purchase Date 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 Collateral Disposition Offer or Asset Disposition Offer. Upon the commencement of an a Collateral Disposition Offer or Asset Disposition Offer, as applicable, the Company shall will send, by first class mail, a notice to the Trustee and to each Holder at its registered addressof the Holders of the Notes. The notice shall will contain all instructions and materials necessary to enable such Holder Holders to tender Notes pursuant to the Collateral Disposition Offer or Asset Disposition Offer. Any Asset Disposition Offer shall be made to all Holders, as applicable. The notice, which shall will govern the terms of the Collateral Disposition Offer or Asset Disposition Offer, shall as applicable, will state:
(1) that the Collateral Disposition Offer or Asset Disposition Offer is being made pursuant to this Section 4.153.5 and the length of time the Collateral Disposition Offer or Asset Disposition Offer will remain open;
(2) the Asset Disposition Offer Amount Amount, the purchase price and the Asset Disposition Purchase Date;
(3) that any Notes Security not tendered or accepted for payment shall will continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes Note accepted for payment pursuant to the Collateral Disposition Offer or Asset Disposition Offer shall will cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the a Collateral Disposition Offer or Asset Disposition Offer Offer, as applicable, may only elect to have all Notes purchased in denominations of such Note purchased and may not elect to have only a portion $2,000 or integral multiples of such Note purchased$1,000 in excess thereof only;
(6) that Holders electing to have a Note purchased pursuant to any Collateral Disposition Offer or Asset Disposition Offer shall Offer, as applicable, will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on attached to the reverse of the Notes Note completed, or transfer its interest in such Security by book-entry transfer, to the Company, Company or a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days Business Days before the Asset Disposition Purchase Date;
(7) that Holders shall will be entitled to withdraw their election if the Company, the Depository Company or the Paying Agent, as the case may be, receives, not later than the second business day prior to expiration of the Asset Disposition Purchase DateOffer Period, a notice telegram, telex, facsimile transmission or letter 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes and, if applicable, other Indebtedness required to be purchased pursuant to the last paragraph of Section 3.5(a) and other Pari Passu Indebtedness surrendered by the Holders thereof exceeds the Asset Disposition Offer Amount, the Company shall will select the Notes and, if applicable, such other Indebtedness and Pari Passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Securities and such other Indebtedness and Pari Passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,0002,000, or integral multiples of $1,000 in excess thereof, shall will be purchased);; and
(9) that Holders whose Notes were purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Dateinterest payment date, any accrued and unpaid interest will be paid on such Asset Disposition Purchase Date 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 Securities pursuant to the Collateral Disposition Offer or Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes (and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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.Indebtedne
Appears in 1 contract
Sources: Indenture (Easton-Bell Sports, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition unless:
(1) the Company or such Restricted SubsidiarySubsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the case may beCompany, receives consideration (both cash and non cash) equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration from such Asset Disposition thereof received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets. For purposes cash equivalents; provided, however, that the amount of this clause (2), each of the following shall be deemed to be cash:
(aA) any liabilities (as shown on the face of the Company’s 's or such Restricted Subsidiary’s then 's most recent balance sheet), sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligationsthat are by their terms subordinated to the Securities) that are assumed by the transferee of any such assets pursuant to a customary novation agreement (provided, however, that releases the Company or such Restricted Subsidiary is released from further liability;
all liability with respect thereto), (bB) any securitiesnotes, notes or other obligations or securities received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversionreceived) within 180 days of following the closing of such Asset Disposition; and
(cDisposition,(C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (cC) that is at that time outstanding, not to exceed $100.0 10 million at time of receipt of such Designated Noncash Consideration (with the Fair Market Value 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)value)and (D) any real property or improvements received in exchange for real property or improvements having a comparable market value as determined in good faith by the Board of Directors, 64 55 shall be deemed to be cash for purposes of this provision and for no other purpose; and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be,
) (iA) first, to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay repay, redeem or purchase such Bank Senior Indebtedness of the Company or Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 365 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; (such periodB) second, the “Application Period”), unless to the extent the Company elects, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; (C) third, to the extent of the balance of such Net Available Cash is otherwise used after application in accordance with clause clauses (iiA) and (B), to make an Offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness of the Company) pursuant to and subject to the conditions of Section 4.06(b); and (D) fourth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C), for any general corporate purpose permitted pursuant to the terms of the Indenture; provided, however, that, that in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a)A) or (C) above, the Company or such Restricted Subsidiary will shall permanently retire such Indebtedness and will 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, or.
(iia) except to the extent that the Company aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $15 million. Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or such Restricted Subsidiary elects, applied to invest in Replacement Assets within the applicable Application Period; andtemporarily reduce revolving credit indebtedness. 65 56
(b) second, to In the extent event of an Asset Disposition that requires the purchase of the balance Securities (and other Senior Subordinated Indebtedness of the Net Available Cash after application in accordance with (aCompany) above (such balance, “Excess Proceeds”pursuant to Section 4.06(a)(3)(C), is applied the Company will purchase Securities tendered pursuant to an offer by the Company or for the Securities (and such Restricted Subsidiaryother Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application event such other Senior Subordinated Indebtedness of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness or otherwise invest of the Company, such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier datelesser price, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not may be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required provided for by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”Subordinated Indebtedness) to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures (including prorating in the event of over subscription) set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this IndentureSection 4.06(c). If the aggregate principal amount purchase price of Notes and Pari Passu Notes validly the securities tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess ProceedsNet Available Cash allotted to their purchase, the Trustee Company shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes securities to be purchased on a pro rata basis on but in round denominations, which in the basis case of the aggregate Securities will be denominations of $1,000 principal amount of or multiples thereof. The Company shall not be required to make such tendered Notes an Offer to purchase Securities (and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination other Senior Subordinated Indebtedness of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased Company) pursuant to this Section 4.15 (4.06 if the “Asset Disposition Offer Amount”) or, if Net Available Cash available therefor is less than the Asset Disposition $15 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response is required with respect to the Net Available Cash from any subsequent Asset Disposition Offer. Upon Disposition).
(1) Promptly, and in any event within 10 days after the commencement of Company becomes obligated to make an Asset Disposition Offer, the Company shall send, by first class mail, a notice deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at its registered addressthe applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports 66 57 describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to enable such Holder to tender Notes Securities pursuant to the Asset Disposition Offer. Any Asset Disposition , together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall be made deliver to all Holders. The notice, which shall govern the terms Trustee an Officers' Certificate as to (A) the amount of the Asset Disposition Offer (the "Offer Amount"), including information as to any other Senior Indebtedness Subordinated Indebtedness included in the Offer, shall state:
(1B) that the allocation of the Net Available Cash from the Asset Disposition Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;4.06.
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note Security purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the NoteSecurity, with the an appropriate form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes duly completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent Company at the 67 58 address specified in the notice at least three days before Business Days prior to the Asset Disposition Purchase Date;
(7) that . Holders shall be entitled to withdraw their election if the Company, the Depository Trustee or the Paying Agent, as the case may be, receives, Company receives not later than the second business day one Business Day prior to the Asset Disposition Purchase Date, a notice telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note Security purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) that . Holders whose Notes were Securities are purchased only in part shall be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer); andSecurities surrendered.
(104) all other procedures, if any, determined by At the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in time the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid Company delivers Securities to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will Trustee which are to be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Dateaccepted for purchase, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will also deliver to the Trustee an Officers’ ' Certificate stating that such Notes or portions thereof were Securities are to be accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.15 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu NotesSection. 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company A Security shall be deemed to have sold been accepted for purchase at the properties and assets of time the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15Trustee, and shall comply with directly or through an agent, mails or delivers payment therefor to the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. surrendering Holder.
(d) The Company will shall comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes Securities pursuant to this Section 4.15Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15Section, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Indenture Section by virtue of any conflictits compliance with such securities laws or regulations.
Appears in 1 contract
Sources: Indenture (Travelcenters Realty Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cashincluding 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 not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration from such Asset Disposition thereof received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash cash, Temporary Cash Investments, assets useful in a Permitted Business or Cash Equivalents or Replacement Assets. For purposes Permitted Securities; provided, that the amount of this clause (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Disposition having an aggregate Fair Market Value shall be deemed to be cash for the purposes of this provision (but for no other purpose) so long as determined in good faith by the Board of Directors of the Company)such amount, taken together with the Fair Market Value when received of all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding
(i. e., that has not to been sold for or otherwise converted into cash or Permitted Securities), does not exceed $100.0 million (50.0 million; provided, further, that with respect to the Fair Market Value sale of each item one or more properties, up to 75% of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value)consideration may consist of Indebtedness of the purchaser of such properties so long as such Indebtedness is secured by a first priority Lien on the properties sold; and
(3) an amount equal to 100% of the Net Available Cash from such Asset DispositionDisposition is applied by the Company (or such Restricted Subsidiary, as the case may be) within 540 days after the later of the date of such Asset Disposition and the receipt of such Net Available Cash:
(aA) firstto prepay, repay, purchase, repurchase, redeem, retire, defease or otherwise acquire for value Secured Indebtedness of the Company or a Subsidiary Guarantor or Indebtedness of a Restricted Subsidiary that is applied not a Subsidiary Guarantor, in each case other than Indebtedness owed to the Company or an Affiliate of the Company;
(B) to reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary) or make one or more capital expenditures; or
(C) (i) to redeem the Notes or make open market purchases thereof at a price not less than 100% of the principal amount thereof or (ii) to make an Asset Sale Offer to purchase Notes pursuant to and subject to the conditions set forth in paragraph (b) of this Section 4.10; provided, however, that if the Company elects (or is required by the terms of any Pari Passu Indebtedness), such Asset Sale Offer may be made ratably (determined based upon the respective principal amounts of the Notes and such Pari Passu Indebtedness being purchased or repaid) to purchase the Notes and to purchase or otherwise repay such Pari Passu Indebtedness; provided that pending final application of any such Net Available Cash in accordance with clause (A), (B) or (C) above, the Company and the Restricted Subsidiaries may temporarily reduce revolving Indebtedness outstanding under the Credit Agreement or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. To the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) above, the Company or such Restricted Subsidiary, as the case may be,
, may use such balance for any general corporate purpose not prohibited by the terms of this Indenture. In connection with any prepayment, repayment, purchase, repurchase, redemption, retirement, defeasance or other acquisition for value of Indebtedness pursuant to clause (iA) to the extent or (C) above, the Company or any such Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), 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 repaid, purchased, or
(ii) to repurchased, redeemed, retired, defeased or otherwise acquired for value. Notwithstanding the extent foregoing provisions of this Section 4.10, the Company or such and the Restricted Subsidiary elects, Subsidiaries will not be required to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of apply any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required covenant except to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and Net Available Cash from all Asset Dispositions that is not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company applied in accordance with this covenant exceeds $50.0 million. For the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition4.10, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries following are deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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.cash:
Appears in 1 contract
Sources: Indenture (Orbital Atk, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any consummate an Asset Disposition unless:
: (1) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration (both cash and non cash) at the time of such Asset Disposition which, taken as a whole, is at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) fair market value of the shares and assets subject to such Asset Disposition;
or Equity Interests issued or sold or otherwise disposed of; (2) such fair market value is determined by the Company's Board of Directors and evidenced by a resolution of such Board of Directors set forth in an Officers' Certificate delivered to the Agent; (3) at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents or Marketable Securities and (4) an amount equal to 100% of the Net Proceeds from such Asset Disposition received are applied by the Company or such Restricted Subsidiary, as the case may be, (A) first, to the extent the Company or any Restricted Subsidiary is required by the terms of any Senior Indebtedness (other than the Cash Pay Loans or Exchange Notes), to prepay, repay or purchase such Senior Indebtedness; and (B) second, to prepay or redeem the Loans and Exchange Notes at par, plus accrued and unpaid interest, if any, thereon, in accordance with Section 2.5(e); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to the form of cash preceding clause (4)(A), the Company or Cash Equivalents 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 Replacement Assets. purchased.
(b) For purposes of this clause (2)provision, each of the following shall be deemed to be cash:
(a1) any liabilities (as shown on the face of the Company’s 's or such Restricted Subsidiary’s then 's most recent balance sheet), ) of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant (other than contingent liabilities and liabilities that are by their terms subordinated to a customary novation agreement that releases all Senior Indebtedness) (in which case the Company or shall, without further action, be deemed to have applied such Restricted Subsidiary from further liability;assumed liabilities in accordance with clause 4(A) of Section 6.4(a)); and
(b2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted converted, sold or exchanged by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 30 (or, after the Conversion Date, 90) days of the related Asset Disposition (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and).
(c) any Designated Noncash Consideration received by Notwithstanding the foregoing provisions, the Company or and its Restricted Subsidiaries will not be required to apply any Net Proceeds in accordance herewith except to the extent that the Net Proceeds from all Asset Dispositions which are not applied in accordance with this covenant exceeds €5,000,000 prior to the Conversion Date and €25,000,000 after the Conversion Date.
(d) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, engage in any Asset Swaps, unless the Conversion Date shall have occurred and:
(1) at the time of entering into such Asset Disposition having an aggregate Fair Market Value 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;
(as determined in good faith 2) the terms of such Asset Swap have been approved by a majority of the members of the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company (or such the Restricted Subsidiary, as the case may be,
(i) to receives consideration at the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date time of such Asset Disposition (such periodSwap which, the “Application Period”)taken as a whole, unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount at least equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent fair market value of the balance assets disposed of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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 conflictSwap.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will and QS Wholesale shall not, and will the Company shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
: (1) the Company Company, QS Wholesale or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) at the time of such Asset Disposition at least equal to not less than the Fair Market Value fair market value (such ▇▇▇▇ ▇▇▇▇▇▇ Value fair market value to be determined on the date of contractually agreeing to such Asset Disposition) ), as determined in good faith by the Company (including as to the value of all non-cash consideration), of the shares and assets subject to such Asset Disposition;
; (2) except in the case of Permitted Asset Swaps, at least 75% of the consideration from such Asset Disposition received by the Company Company, QS Wholesale or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents or Replacement Assets. For purposes Equivalents; (3) if such Asset Disposition involves the disposition of this clause Notes Priority Collateral, an amount equal to the Net Available Cash thereof in excess of $10,000,000 attributable to Notes Priority Collateral (2), each of in the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), good faith determination of the Company or as described in paragraph (g) of this Section 3.7) shall be deposited with the Collateral Agent for deposit into the Notes Loan Priority Account pending application in accordance with the provisions described below, and, if any Restricted Subsidiary (property other than contingent liabilities and Subordinated Obligationscash or Cash Equivalents is included in such Net Available Cash attributable to Notes Priority Collateral (in the good faith determination of the Company as described in paragraph (g) that are assumed by the transferee of any this Section 3.7), substantially all of such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (shall be made subject to the extent of the cash received in that conversion) within 180 days of the closing of such Asset DispositionNote Liens; and
and (c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(34) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company Company, QS Wholesale or such Restricted Subsidiary, as the case may be,
(i) to , at the extent option of the Company Company, QS Wholesale or any such Restricted Subsidiary, as the case may be, elects : (a) to the extent such Net Available Cash constitutes proceeds from an Asset Disposition of (x) ABL Priority Collateral or is required by the terms of any Bank Indebtedness)assets that are not Collateral, to prepay, repay or purchase such Bank Indebtedness of under the Company ABL Credit Facility as required by the terms thereof or (y) assets of a Restricted Subsidiary that is not a Subsidiary Guarantor, to prepay, repay or purchase Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor as required by the terms of such Indebtedness of such Restricted Subsidiary, in each case of clauses (x) and (y), within 365 days from the later of the date of such Asset Disposition (such period, or the “Application Period”), unless to the extent receipt of such Net Available Cash is otherwise used in accordance with clause (ii)Cash; provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company Company, QS Wholesale or such Restricted Subsidiary will shall retire such Indebtedness and will shall cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) secondto repay or purchase Notes or Permitted Additional Pari Passu Obligations at a price equal to or higher than 100% of the principal amount thereof within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, that if an Issuer or any Restricted Subsidiary shall so repay Permitted Additional Pari Passu Obligations, the Issuers will reduce (or, as applicable, offer to purchase) obligations under the Notes on a pro rata basis by, at its option, (A) redeeming Notes pursuant to Section 5.1, (B) purchasing Notes through open market purchases, at a price as a percentage of the principal amount thereof equal to or higher than the price paid for such Permitted Additional Pari Passu Obligations, in a manner that complies with this Indenture and applicable securities law or (C) making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon; (c) to acquire Additional Assets or make capital expenditures within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided that, to the extent of the balance of the such Net Available Cash after application is received in accordance with respect of Notes Priority Collateral (a) above (such balance, “Excess other than Non-Core Asset Proceeds”), such Net Available Cash is applied by the Company to acquire assets substantially all of which constitute Notes Priority Collateral or such Restricted Subsidiary, as the case may be, toward an offer capital expenditures relate to purchase Notes as set forth in the next succeeding paragraphPriority Collateral; provided, howeverfurther that, in case of the acquisition of Additional Assets, such Additional Assets are thereupon pledged to the extent required by the Security Documents (subject to the exclusions and exceptions therein) and otherwise in compliance with Section 3.19; or (d) to do any combination of the foregoing; provided that pending the final application of any such Net Available Cash (other than Trust Monies) in accordance with clause (a), (b), (c) or clause (bd) above, the Company Company, QS Wholesale and its the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. ; provided further that the Company and QS Wholesale will be deemed to have complied with the provision described in clause (c) above if, and to the extent that, within 365 days after the Asset Disposition that generated the Net Available Cash, the Company, QS Wholesale or any Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement to acquire Additional Assets or make such capital expenditures, and that acquisition is thereafter completed or the capital expenditures thereafter made within 180 days after the end of such 365-day period.
(b) Any Net Available Cash from Asset Dispositions that are not applied or invested as provided in paragraph (a) of this Section 3.7 shall be deemed to constitute “Excess Proceeds.” On the 366th day after an Asset Disposition (or such earlier date, if any, as extended pursuant to the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied proviso in accordance with clause paragraph (3)(aa) of the first paragraph of this Section 4.153.7), if the aggregate amount of Excess Proceeds exceeds $50.0 million25,000,000 (or its equivalent in another currency), the Company will Issuers (with respect to the Notes) and the Company, QS Wholesale or Boardriders, as the case may be (with respect to any Permitted Additional Pari Passu Notes or any Other Pari Passu Notes (each as defined below), as required by such Permitted Additional Pari Passu Notes or Other Pari Passu Notes, as the case may be) shall be required to make an offer (“Asset Disposition Offer”) to all Holders and (x) in the case of Net Available Cash from an Asset Disposition of Notes andPriority Collateral, to the extent required by the terms of other Senior Permitted Additional Pari Passu Obligations, to all holders of other Permitted Additional Pari Passu Obligations outstanding with similar provisions requiring the Company or QS Wholesale, as the case may be, to make an offer to purchase such Permitted Additional Pari Passu Obligations with the proceeds from any Asset Disposition (“Permitted Additional Pari Passu Notes”), to purchase the maximum principal amount of the Notes and any such Permitted Additional Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds or (y) in the case of any other Net Available Cash, to the extent required by the terms of other Pari Passu Indebtedness, to all holders of other Senior Pari Passu Indebtedness outstanding with similar provisions requiring the Company Company, QS Wholesale or Boardriders, as the case may be, to make an offer to purchase such Senior Pari Passu Indebtedness with the proceeds from any Asset Disposition (“Other Pari Passu Notes” and, together with the Permitted Additional Pari Passu Notes, the “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 purchased out of the Excess Proceeds, at an . The offer price shall, in each case, be cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to but not including the date of purchase, in accordance with the procedures set forth herein in this Indenture or the agreements governing the Pari Passu Notes, as applicable, in each case case, in minimum denominations of $2,000 and in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notesexcess thereof. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof and other Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to will be purchased on a pro rata basis based on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at to zero. Each The Issuers may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer will with respect to such Net Available Cash prior to the expiration of the relevant 365 days (or such longer period provided above) or with respect to Excess Proceeds of $25,000,000 or less.
(c) The Asset Disposition Offer shall remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will Issuers shall purchase the principal amount of Notes and the Company, QS Wholesale or Boardriders, as the case may be, will purchase the principal amount of Pari Passu Notes required to be purchased pursuant to this Section 4.15 3.7 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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:.
(1d) that the Asset Disposition Offer is being made pursuant to this Section 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Dateinterest payment date, any accrued and unpaid interest will 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 will shall be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. .
(e) On or before the Asset Disposition Purchase Date, the Company willCompany, QS Wholesale or Boardriders, as the case may be, 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 Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case case, in minimum denominations of $2,000 and in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notesexcess thereof. The Company will shall deliver to the Trustee an Officers’ Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Company Issuers in accordance with the terms of this Section 4.15 3.7 and, in addition, the Company will Company, QS Wholesale or Boardriders, as the case may be, shall deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. The Company Company, QS Wholesale, Boardriders or the Paying Agent, as the case may be, will 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 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 Company, QS Wholesale or Boardriders, as the case may be, for purchase, and the Company will Issuers shall promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Officer’s Certificate from the Company, will 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 shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company will Company, QS Wholesale or Boardriders, as the case may be, shall take any and all other actions actions, if any, required by the agreements governing the Pari Passu Notes. Any Note not so accepted will shall be promptly mailed or delivered by the Company Issuers to the Holder thereof. The Company will Issuers shall publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In .
(f) For the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition3.7, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold following shall be deemed to be cash: (x) the assumption by the transferee of Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the Company or QS Wholesale or Indebtedness of a Wholly Owned 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, QS Wholesale or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition (in which case the Issuers shall, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with clause (a) of this Section 3.7); (y) securities, notes or other obligations or assets received by the Company, QS Wholesale or any Restricted Subsidiary of the Company from the transferee that are converted by the Company, QS Wholesale or such Restricted Subsidiary into cash or Cash Equivalents within 180 days after receipt; and (z) any Designated Non-cash Consideration received by the Company, QS Wholesale or any Restricted Subsidiary in such Asset Disposition having an aggregate fair market value (as determined in good faith by the Company), taken together with all other Designated Non-cash Consideration received pursuant to this clause (z) that is at that time outstanding, not to exceed the greater of (i) $25,000,000 and (ii) 2.0% of the Company’s Consolidated Tangible Assets 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.
(g) The Company shall determine in good faith whether, and to what extent, an Asset Disposition is in respect of Notes Priority Collateral and to what extent the Net Available Cash for purposes received from an Asset Disposition of this Section 4.15. Notes Priority Collateral are used to acquire or are invested in Notes Priority Collateral taking into account all relevant factors, including without limitation, the existence of structurally senior claims against the Notes Priority Collateral and the assets of an entity whose Capital Stock is subject to such Asset Disposition or acquired with such Net Available Cash.
(h) The Company will Issuers shall comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.153.7. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.153.7, the Company will Issuers shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its their obligations under this Indenture by virtue of any conflict.
(i) For the purposes of this Section 3.7, Holders electing to have a Note purchased shall be required to surrender the Note, with an appropriate form duly completed, to the Issuers at the address specified in the notice at least three Business Days prior to the purchase date. Each Holder shall be entitled to withdraw its election if the Issuers receive, not later than one Business Day prior to the purchase dat
Appears in 1 contract
Sources: Indenture (Quiksilver Inc)
Limitation on Sales of Assets and Subsidiary Stock. The Company will not, and will not permit any of its Restricted Subsidiaries to, make directly or indirectly, consummate any Asset Disposition unless:
(1) the Company or such a Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cash) at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on measured as of the date of contractually agreeing the definitive agreement with respect to such Asset Disposition) ), of the shares assets and assets subject Equity Interests issued or sold pursuant to such Asset Disposition;
(2) at least 75% of the consideration from such Asset Disposition received by the Company or such its Restricted Subsidiary, as the case may be, Subsidiaries is in the form of cash or Temporary Cash Equivalents Investments, Additional Assets or Replacement Assets. For purposes of this clause any combination thereof (2collectively, the “Cash Consideration”), ; provided that each of the following shall will be deemed to be cash:
(a) any liabilities (liabilities, as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent consolidated balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligationsliabilities that are by their terms subordinated to the Securities or any Subsidiary Guarantee) that are assumed or otherwise forgiven by the transferee of any such assets pursuant to a customary novation by written agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such the transferee that are are, within 180 days of the Asset Disposition, converted by the Company or such Restricted Subsidiary into cash (cash, to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Non-Cash Consideration received by the Company or any such Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)Value, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (c) that is at that time outstandingd), not to exceed $100.0 million an amount equal to 5.0% of the Company’s 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 Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company (or such a Restricted Subsidiary, as the case may be,) within 365 days to:
(ia) prepay, repay, redeem, reduce or purchase any Priority Lien Debt and other outstanding Priority Lien Obligations or any Parity Lien Debt and other outstanding Parity Lien Obligations, provided that, with respect to any such prepayment, repayment, redemption or purchase of Parity Lien Debt or Parity Lien Obligations other than the extent Securities, a ratable portion of the Securities must be redeemed or repurchased (or offered to be repurchased) in accordance with the Excess Proceeds Offer provisions below;
(b) acquire Additional Assets (that, other than Excluded Assets, must become Collateral subjected to a second-priority Lien in favor of the Collateral Trustee for the benefit of holders of Parity Lien Obligations); or
(c) make capital expenditures in a Permitted Business. The requirement of clauses (3)(b) and (3)(c) of the preceding paragraph of this Section 3.5 shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company (or any Restricted Subsidiary of the Company) with a Person other than a Restricted Subsidiary of the Company within the time period specified in the preceding paragraph and such Net Available Cash is subsequently applied in accordance with such contract within six months following the date such agreement is entered into. Except as provided above, pending application of Net Available Cash pursuant to this Section 3.5, the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness Subsidiary of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of may apply the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of temporarily reducing Indebtedness under any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness Credit Facility or otherwise invest such the Net Available Cash in any manner that is not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board The amount of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash not applied or invested as provided above will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds equals or exceeds $50.0 25.0 million, the Company will be required to shall make an offer to purchase Securities, and, if required by the terms of other Parity Lien Debt, to holders of such other Parity Lien Debt (an “Asset Disposition Offer”) to all Holders of Notes andwithin 30 days, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to and shall purchase such Senior 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly Securities tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than by the Excess ProceedsCompany for the Securities (and, if applicable, such other Parity Lien Debt) at a purchase price of 100% of their principal amount without premium, plus accrued but unpaid interest to, but not including, the Company may use any remaining Excess Proceeds for general corporate purposesdate of purchase, subject to the right of Holders of record on the relevant record date to receive interest on the relevant interest payment date (or, in respect of such other covenants contained Parity Lien Debt, such lesser price, if any, as may be provided for by the terms of such Parity Lien Debt) in accordance with the procedures (including prorating in the event of oversubscription) set forth below in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu NotesSection 3.5. Upon completion of such an Asset Disposition Offer, the amount of Excess Proceeds shall will be deemed to be reset at to zero. Each The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes Securities and Pari Passu Notes such other Parity Lien Debt as may be required to be purchased pursuant to this Section 4.15 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 Notes such other Parity Lien Debt validly tendered and not properly withdrawn in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Dateinterest payment date, any accrued and unpaid interest interest, if any, will be paid to the Person in whose name a Note Security is registered at the close of business on such record date, and no additional further interest will be payable to Holders who tender Notes Securities pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, to the extent necessary on a pro rata basis to (except that any Securities represented by a Security in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the extent necessaryTrustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), the Asset Disposition Offer Amount of Notes Securities and Pari Passu Notes such other Parity Lien Debt or portions of Securities and such Notes and Pari Passu Notes other Parity Lien Debt 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 Notes such other Parity Lien Debt so validly tendered and not properly withdrawn, in each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000; provided that if, following the repurchase of a portion of a Security, the remaining principal amount (provided that the unpurchased portion of any Note shall not such Security outstanding immediately after such repurchase would be less than $2,000 in 2,000, then the portion of such Security so repurchased shall be reduced such that the remaining principal amount) or, in the case amount of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing Security outstanding immediately after such Pari Passu Notesrepurchase is $2,000. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes Securities or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 3.5 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notesother Parity Lien Debt. The Company or the Paying Agentpaying 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 otherwise deliver in accordance with the applicable procedures of DTC) to each tendering Holder of Notes Securities or holder or lender of Pari Passu Notessuch other Parity Lien Debt, as the case may be, an amount equal to the purchase price of the Notes Securities or Pari Passu Notes such other Parity Lien Debt 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 NoteSecurity, and the Trustee, upon delivery of an Officers’ Certificate authentication order from the Company, will authenticate and mail or deliver such new Note Security to such Holder, in a principal amount equal to any unpurchased portion of the Note Security surrendered; provided that each such new Note Security will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess thereofof $2,000. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Notessuch other Parity Lien Debt. Any Note 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 or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will comply, to the extent applicable, with the requirements of Rule 14(e) 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes Securities pursuant to this Section 4.15an Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.153.5, 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 conflictits compliance with such securities laws or regulations.
Appears in 1 contract
Sources: Indenture (CONSOL Mining Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, make any consummate an Asset Disposition Sale, unless:
(1) the Company Issuer (or such the Restricted Subsidiary, as the case may be, ) receives consideration (both cash and non cash) at the time of the Asset Sale at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on as of the date of contractually agreeing contractual agreement to such Asset DispositionSale) of the shares and assets subject to such Asset Disposition;or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration from such received in the Asset Disposition received Sale by the Company Issuer or such any of its Restricted Subsidiary, as the case may be, Subsidiaries is in the form of cash or cash, Cash Equivalents or Replacement Assets. For purposes of this clause (2)provision, each of the following shall will be deemed to be cash:
(ai) any liabilities (Indebtedness or liabilities, as shown on the face of the CompanyIssuer’s or such Restricted Subsidiary’s then 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 most recent 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), of the Company Issuer or any of its Restricted Subsidiary Subsidiaries (other than contingent liabilities and Subordinated Obligationsliabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases and for which the Company Issuer or such Restricted Subsidiary from further liabilityhas been released in writing;
(bii) any securities, notes or other obligations received by the Company Issuer or any such Restricted Subsidiary from such transferee that are converted by the Company Issuer or such Restricted Subsidiary into cash (or Cash Equivalents within 180 days of the receipt thereof, to the extent of the cash or Cash Equivalents received in that conversion;
(iii) within 180 days any stock or assets of the closing kind referred to in clauses (2) or (4) of such Asset DispositionSection 3.5(b); and
(civ) any Designated Noncash Non-cash Consideration received by the Company Issuer or any such Restricted Subsidiary in such Asset Disposition Sale having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured determined as of the date of contractual agreement to such Asset Sale) taken together with all other Designated Non-cash Consideration received pursuant to this clause (d) that is at that time outstanding not to exceed, at the time received without giving effect to subsequent changes in value); andof determination, the greater of $35.0 million and 15.0% of Consolidated EBITDA of the Issuer and its Restricted Subsidiaries for the most recently ended four fiscal quarters for which internal financial statements are available.
(3b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Issuer or one or more of its Restricted Subsidiaries may apply an amount equal to 100% such Net Proceeds at its option to any combination of the Net Available Cash from such Asset Dispositionfollowing:
(a1) first, is applied by the Company or (x) if assets subject to such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness)Asset Sale constitute Collateral, to prepay, repay or purchase (i) Indebtedness and other Obligations under the Credit Agreement (or any Permitted Refinancing Indebtedness in respect thereof), (ii) Obligations in respect of the Notes, (iii) Obligations in respect of other debt securities constituting First-Lien Obligations or (iv) Indebtedness that is secured by the assets which are the subject of such Bank Asset Sale and (y) if assets subject to such Asset Sale do not constitute Collateral, to prepay, repay or purchase Senior Indebtedness of the Company Issuer or any of a its Restricted Subsidiary within 365 days from the date of such Asset Disposition Subsidiaries (such period, the “Application Period”), unless other than Indebtedness owed to the extent such Net Available Cash is otherwise used in accordance with clause (iiIssuer or another Restricted Subsidiary); provided, however, that, provided that in connection with any prepayment, repayment or purchase of any such Indebtedness other than Obligations in respect of the Notes pursuant to this clause (a1)(x)(iii) or (iv), the Company Issuer shall also equally and ratably reduce Indebtedness under the Notes by making an offer (an “Asset Sale Offer”) (in accordance with the procedures set forth below for an Asset Sale Offer with Excess Proceeds) to all Holders to purchase, on a pro rata basis (subject to adjustments to maintain the authorized denominations for the Notes), the principal amount of Notes, in each case, at a purchase price equal to 100% of the principal amount (or accreted value, as applicable) plus any accrued and unpaid interest on the Notes to be purchased up to, but excluding, the date of such purchase;
(2) to acquire all or substantially all of the assets of, a division or line of business of or a majority of the Capital Stock of, another Person engaged in a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person is or becomes a Restricted Subsidiary will retire such Indebtedness and will cause of the related commitment Issuer;
(if any3) to make a capital expenditure or other expenditures in connection with the construction, operation, maintenance, repair or improvement of existing properties and assets;
(4) to acquire or invest in Replacement Assets or acquire long-term assets in a Permitted Business; or
(5) any combination of the foregoing; provided that in the case of clauses (2), (3) and (4) above, (i) any such acquisition, expenditure or investment in accordance with such clause may be permanently reduced made by means of an acquisition, expenditure or investment by a Restricted Subsidiary in an amount equal to the principal amount so prepaidNet Proceeds received by the Issuer or another Restricted Subsidiary, repaid or purchased, or
(ii) if the Issuer or any Restricted Subsidiary enters into a binding commitment within such 365 day period, such binding commitment shall be treated as a permitted application of the Net Proceeds from such Asset Sale if an amount equal to such Net Proceeds is applied within 180 days of the end of the 365 day period (provided further that if such commitment is later terminated or canceled before such Net Proceeds are applied and the Issuer or any Restricted Subsidiary enters into another binding commitment (the “Second Commitment”) within 180 days of such cancellation or termination (or, if later, 365 days from the receipt of such Net Proceeds), such Second Commitment shall be treated as a binding commitment; provided further that if any Second Commitment is later terminated or canceled before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds if not otherwise applied as provided above within 365 days of the receipt of such Net Proceeds), (iii) if assets subject to such Asset Sale constitute Collateral, any assets acquired or investment described in clauses (2) and (4) above shall be pledged as Collateral to secure the Notes if and to the extent required by the Company or Notes Collateral Documents (and pursuant to the terms thereof) and (iv) if assets subject to such Restricted Subsidiary electsAsset Sale constitute Collateral, any such assets underlying any expenditure described in clause (3) above shall be pledged as Collateral to invest in Replacement Assets within secure the applicable Application Period; and
(b) second, Notes if and to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied required by the Company or such Restricted Subsidiary, as Notes Collateral Documents (and pursuant to the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending terms thereof).
(c) Pending the final application of the amount of any such Net Available Cash in accordance with clause (a) or clause (b) aboveProceeds, the Company and Issuer or any of its Restricted Subsidiaries may temporarily reduce Indebtedness revolving credit borrowings or otherwise invest such apply the Net Available Cash Proceeds in any manner that is not prohibited by this Indenture. On Holders of Notes may not have control of, or a perfected security interest in the 366th day after an Asset Disposition (or such earlier dateNet Proceeds, if any, as which could diminish the Board of Directors value of the Company Collateral.
(d) The amount of any Net Proceeds from Asset Sales that is not applied or such Restricted Subsidiary determines that the Net Available Cash invested as described above will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $50.0 35.0 million, within 30 days thereof, unless waived or modified with the Company consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding, the Issuer will be required to make an offer (“Asset Disposition Offer”) Sale Offer to all Holders of Notes and, (with a copy to the extent required by the terms of other Senior Indebtedness, to Trustee) and all holders of other Senior Indebtedness outstanding that is pari passu with the Notes containing provisions similar provisions requiring the Company to make an offer those set forth in this Indenture with respect to offers to purchase or redeem such Senior Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) of sales of assets to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies other effectively pari passu Indebtedness that may be purchased out of the Excess Proceeds, at an . The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount of the Notes and Pari Passu Notes being purchased, plus accrued and unpaid interest thereon, if any, to but excluding, the date of purchase, and will be payable in accordance cash. The Issuer may satisfy the foregoing obligation with the procedures set forth herein respect to such Net Proceeds from Asset Sales by making an Asset Sale Offer with respect to all or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased a portion of the available Net Proceeds (the “Advance Portion”) in advance of being required to do so by this Indenture (the “Advance Offer”). If any Note shall not be less than $2,000 in principal amount) Excess Proceeds (or, in the case of Pari Passu Notesan Advance Offer, the Advance Portion) remain after consummation of an Asset Sale Offer, the Issuer may use those Excess Proceeds (or, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount case of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess ProceedsAdvance Offer, the Company may use Advance Portion) for any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly other pari passu Indebtedness tendered and not properly withdrawn pursuant to an into such Asset Disposition Sale Offer exceeds the amount of Excess ProceedsProceeds (or, in the case of an Advance Offer, the Advance Portion), the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu NotesNotes in global form, in by such other integral multiples method as DTC may prescribe) and the Issuer will select such other pari passu Indebtedness to be specified in the agreements governing such Pari Passu Notes. The Company will deliver purchased pursuant to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 andsuch other pari passu Indebtedness; provided that as between the Notes and any such other pari passu Indebtedness, in addition, such purchases will be made on a on a pro rata basis based on the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. The Company accreted value 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 principal amount equal to the purchase price of the Notes or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lenderother pari passu Indebtedness (subject to adjustments to maintain the authorized denominations for the Notes). Upon completion of each Asset Sale Offer, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery amount of an Officers’ Certificate from the Company, 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 Excess Proceeds will be reset at zero.
(e) The Issuer will comply in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will comply, to the extent applicable, material respects with the requirements of Rule 14(e) of 14e-1 under the Exchange Act and any other securities laws or and regulations thereunder to the extent those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to this Section 4.15an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Section 4.15Indenture, the Company Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of any conflictsuch compliance.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition Sale unless:
(1) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cash) at the time of such Asset Sale at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be including the value of all non-cash consideration), as determined on in good faith by the date Board of contractually agreeing to such Asset Disposition) Directors, of the shares and assets subject to such Asset Disposition;Sale; and
(2) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary therefor is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cashof:
(aA) any cash;
(B) Cash Equivalents;
(C) assumption of liabilities (as shown on the face of the Company’s 's or such Restricted Subsidiary’s then 's most recent balance sheet), ) of the Company or any such Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by their terms subordinated to the Notes) by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liabilityassets;
(bD) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 90 days of the receipt thereof (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; andreceived);
(cE) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Disposition Sale having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)aggre- gate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (cE) that is at then outstanding and all Investments made pursuant to Section 4.07(b)(5) that time are then outstanding, not to exceed $100.0 million 5% of the Total Assets of the Company at the time of the receipt of such Designated Noncash Consideration (with the Fair Market Value 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); and;
(3F) an amount equal to 100% Telecommunications Assets and Capital Stock in any Person primarily engaged in the Telecommunications Business; or
(G) any combination of the foregoing.
(b) Within 365 days after the receipt of any Net Available Cash from such an Asset Disposition:
(a) firstSale, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer may apply such Net Available Cash at its option:
(1) to purchase Notes as set forth repay or retire
(A) secured Indebtedness Incurred by the Company, including Indebtedness under Credit Agreements, or
(B) Indebtedness Incurred by any Restricted Subsidiary (in each case other than any Indebtedness owed to the Company or any Restricted Subsidiary); or
(2) to acquire Telecommunications Assets or Capital Stock in any Person primarily engaged in the next succeeding paragraph; providedTelecommunications Business or to make a capital expenditure or to design, however, that pending improve or expand the Network. Pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) aboveCash, the Company and its or such Restricted Subsidiaries Subsidiary may temporarily reduce Indebtedness revolving credit borrowings, if any, or otherwise invest such Net Available Cash in any manner Cash Equivalents.
(c) Any Net Available Cash from Asset Sales that is not prohibited by this Indenture. On applied or invested as provided in paragraph (b) above on or prior to the 366th day after an Asset Disposition (Sale or such earlier date, if any, as the Board of Directors or the board of the Company or directors of such Restricted Subsidiary determines that not to apply the Net Available Cash relating to such Asset Sale as set forth in paragraph (b) above will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if constitute "EXCESS PROCEEDS." When the aggregate amount of Excess Proceeds exceeds $50.0 million5.0 million (each, a "NET PROCEEDS OFFER TRIGGER DATE"), the Company will be required to make an offer to purchase (“Asset Disposition Offer”the "NET PROCEEDS OFFER") on a date (the "NET PROCEEDS OFFER PAYMENT DATE") not less than 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to and all holders of other Senior Indebtedness outstanding that is PARI PASSU with the Notes containing provisions similar provisions requiring the Company to make an offer those set forth in this Indenture with respect to offers to purchase such Senior Indebtedness or redeem with the proceeds from any Asset Disposition (“Pari Passu Notes”) of sales of assets to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies other PARI PASSU Indebtedness that may be purchased out of the Excess Proceeds, at an . The offer price in cash in an amount any such offer to purchase will be equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest interest, if any, thereon to the date of purchasepurchase and will be payable in cash. If at any time any non-cash consideration (including any Designated Noncash Consideration) received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10.
(d) Notice of each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 30 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples Section 3.09 hereof. If any Excess Proceeds remain after consummation of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant an offer to an Asset Disposition Offer is less than the Excess Proceedspurchase, the Company may use any remaining such Excess Proceeds for general corporate purposes, subject to other covenants contained in any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition a Net Proceeds Offer exceeds the amount of Excess ProceedsProceeds allocable to the Notes, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with PRO RATA basis. Upon completion of any such adjustments as may be deemed appropriate by Net Proceeds Offer, the Company so that only Notes in denominations Amount of $1,000, or integral multiples thereof, Excess Proceeds shall be purchased);reset at zero.
(9e) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or and regulations in connection with the repurchase of Notes pursuant to this Section 4.154.10. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.154.10, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Indenture Section 4.10 by virtue of any conflictthereof.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company Borrower will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition Sale unless:
(1i) the Company Borrower or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cash) at the time of such Asset Sale at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value including as to be the value of all non-cash consideration), as determined on in good faith by the date Board of contractually agreeing to such Asset Disposition) Directors, of the shares and assets subject to such Asset DispositionSale;
(2ii) at least 75% of the consideration from such Asset Disposition thereof received by the Company Borrower or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or cash equivalents or Additional Assets; provided, however, that the 75% limitation set forth in this clause (ii) will not apply to any Asset Sale in which the cash or cash equivalents received therefrom, determined in accordance with paragraph (b) of this Section 6.05, are equal to or greater than the after-tax cash and cash equivalents that would have been received therefrom had such provision applied; and
(iii) an amount equal to 100% of the Net Cash Equivalents or Replacement Assets. Proceeds from such Asset Sale is applied by the Borrower in accordance with Section 2.13.
(b) For the purposes of this clause (2)Section 6.05, each of the following shall be are deemed to be cashcash or cash equivalents:
(ai) any the assumption or discharge of liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), Borrower (other than obligations in respect of Disqualified Stock of the Company Borrower or in respect of liabilities that are by their terms subordinated to the Obligations) or any Restricted Subsidiary (other than contingent obligations in respect of Disqualified Stock or Preferred Stock of a Subsidiary Guarantor or in respect of liabilities and Subordinated Obligations) that are assumed by their terms subordinated to the transferee Subsidiary Guarantee of any such assets pursuant to a customary novation agreement that releases Subsidiary Guarantor) and the Company release of the Borrower or such Restricted Subsidiary from further liabilityall liability on such liabilities in connection with such Asset Sale;
(bii) any securities, notes or other obligations securities received by the Company Borrower or any such Restricted Subsidiary from such the transferee that are converted by the Company Borrower or such Restricted Subsidiary into cash (within 180 days of the receipt of such securities, to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(ciii) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, amount not to exceed in the aggregate at any one time outstanding the greater of (A) $100.0 million 10,000,000 and (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3B) an amount equal to 1002.0% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, Consolidated Total Assets as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent end of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) to purchase the maximum principal amount of Notes and any such Pari Passu Notes to Borrower's most recent Quarterly Reporting Period for which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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 conflictinternal financial statements are available.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Network Communications, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition unless:
(1) the Company or such Restricted SubsidiarySubsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the case may beCompany, receives consideration (both cash and non cash) equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration from such Asset Disposition thereof received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets. For purposes cash equivalents; provided that the amount of this clause (2), each of the following shall be deemed to be cash:
(aA) any liabilities (as shown on the face of the Company’s 's or such Restricted Subsidiary’s then 's most recent balance sheet), sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are by their terms subordinated to the Securities), that are assumed by the transferee of any such assets pursuant to a customary novation agreement (provided that releases the Company or such Restricted Subsidiary is released from further liability;
all liability with respect thereto), (bB) any securitiesnotes, notes or other obligations or securities received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversionreceived) within 180 days of following the closing of such Asset Disposition; and
Disposition and (cC) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (cC) of this paragraph (a) of this Section 4.07 that is at that time outstanding, not to exceed $100.0 5.0 million at time of receipt of such Designated Noncash Consideration (with the Fair Market Value fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be cash for purposes of this provision and for no other purpose; and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be,)
(iA) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay repay, redeem or purchase such Bank Senior Indebtedness of the Company or Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 365 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(such period, the “Application Period”), unless B) to the extent the Company elects, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(C) to the extent of the balance of such Net Available Cash is otherwise used after application in accordance with clause clauses (iiA) and (B) of this paragraph (a)(3) of this Section 4.07, to make an offer to the holders of the Securities (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Securities (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture; and
(D) to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) of this paragraph (a) of this Section 4.07, for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however, that, that in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (A) or (C) of this paragraph (a)) of this Section 4.07, the Company or such Restricted Subsidiary will shall permanently retire such Indebtedness and will 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, or
(ii) to . Notwithstanding the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent foregoing provisions of the balance of the Net Available Cash after application in accordance with this paragraph (a) above (such balance, “Excess Proceeds”), is applied by of this Section 4.07 the Company or such and the Restricted Subsidiary, as the case may be, toward an offer Subsidiaries will not be required to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of apply any such Net Available Cash in accordance with clause (a) or clause (b) abovethis covenant except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this covenant exceeds $15.0 million. Pending application of Net Available Cash pursuant to this Section 4.07, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash shall be invested in any manner not prohibited by this Indenture. On Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness.
(b) In the 366th day after event of an Asset Disposition that requires the purchase of the Securities (or and other Senior Subordinated Indebtedness) pursuant to clause (3)(C) of paragraph (a) of Section 4.07, the Company will purchase Securities tendered pursuant to an offer by the Company for the Securities (and such earlier dateother Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not may be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required provided for by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”Subordinated Indebtedness) to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, (including prorating in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all oversubscription) set forth in paragraph (but not allc) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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.Section
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. The Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non non-cash) equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;; and
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Senior Indebtedness or Guarantor Senior Indebtedness), ) to prepay, repay or purchase such Bank Senior Indebtedness of or Guarantor Senior Indebtedness (other than Disqualified Stock and other than Indebtedness owed to the Company or an Affiliate of a Restricted Subsidiary the Company) within 365 395 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”)above, is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture; provided, further, that clauses (1) and (2) above shall not apply with respect to any Permitted Divestiture. On the 366th 396th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds not used to purchase Senior Notes and Senior Pari Passu Notes pursuant to a Senior Asset Disposition Offer (such balance, “Excess Proceeds”) exceeds $50.0 35.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other 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 Senior Subordinated 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes1,000. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof and other Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer surrendered by holders or lenders of such Pari Passu Notes, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes1,000. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 1,000 or an integral multiple of $1,000 in excess thereof1,000. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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 (Davita Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will Issuer shall not, and will shall not permit any of its the Restricted Subsidiaries to, make any consummate an Asset Disposition Disposition, unless:
(1) the Company Issuer or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) at the time of such Asset Disposition at least equal to not less than the Fair Market Value of the assets sold or otherwise disposed of (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on measured as of the date of contractually agreeing the definitive agreement with respect to such Asset Disposition) of the shares and assets subject to such Asset Disposition;); and
(2) at least 75% of the consideration from such Asset Disposition therefor received by the Company Issuer or such Restricted Subsidiary, as the case may bebe (which, for purposes of this clause (2), consideration will not include any contingent payment obligations related to such Asset Disposition, including, earn-out payments, purchase price adjustments and deferred purchase price payments), is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of Equivalents; provided that the following shall be deemed to be cashamount of:
(aA) any liabilities (liabilities, as shown on the face of the CompanyIssuer’s or such Restricted Subsidiary’s then most recent balance sheet)sheet or in the notes thereto, of the Company Issuer or any of its Restricted Subsidiary Subsidiaries (other than contingent liabilities and Subordinated Obligationsliabilities that are by their terms subordinated to the Notes) (i) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases assets, or (ii) in respect of which neither the Company or such Issuer nor any Restricted Subsidiary from further liabilityfollowing such Asset Disposition has any obligation;
(bB) any securities, notes securities or other obligations received by the Company Issuer or any such Restricted Subsidiary from such transferee that are converted by the Company Issuer or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash received in that conversionor Cash Equivalents received) within 180 days of following the closing of such Asset Disposition;
(C) any Capital Stock, properties or assets of the kind referred to in Section 4.11(b)(2);
(D) cash held in escrow as security for any purchase price settlement, for damages in respect of a breach of representations and warranties or covenants or for payment of other contingent obligations in connection with such Asset Disposition; and
(cE) any Designated Noncash Consideration received by the Company Issuer or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (cE) that is at that time outstanding, not to exceed the greater of (x) $100.0 20.0 million and (y) 2.0% of the Total Assets of the Issuer at the time of the receipt of such Designated Noncash Consideration, with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value); and, in each case, shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(3b) an amount equal to 100% Within 365 days after the receipt of the any Net Available Cash from such Proceeds of any Asset Disposition:
(a) first, is applied by the Company Issuer or such Restricted Subsidiary, as at its option, may apply the case may beNet Cash Proceeds from such Asset Disposition to one or more of the following, or any combination,
(1) to reduce or repay:
(A) Indebtedness under the Credit Facility and (i) permanently repay any term loans thereunder or (ii) reduce the revolving commitments, if any, thereunder; or
(B) to the extent the Company property that is subject to such Asset Disposition was sold by a non-Guarantor Subsidiary, Indebtedness of a non-Guarantor Subsidiary, other than Indebtedness owed to the Issuer or any another Restricted Subsidiary, as ; or
(2) to make (A) an Investment in any one or more businesses; provided that such Investment in any business is in the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness form of the Company or acquisition of Capital Stock of a Restricted Subsidiary within 365 days or results in the Issuer or its Restricted Subsidiaries owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (B) capital expenditures in respect of the Issuer, its Restricted Subsidiaries or their respective assets or (C) acquisitions of other properties or assets to be held by the Issuer or its Restricted Subsidiaries (including assets that replace the business, properties and assets of the Issuer or any of its Restricted Subsidiaries that were the subject of such Asset Disposition), in the case of each of (A), (B) and (C), used or useful in a Related Business;
(3) to reduce or repay Pari Passu Payment Lien Obligations, provided, that if the Issuer or any Restricted Subsidiary shall so reduce Pari Passu Payment Lien Obligations, the Issuer shall equally and ratably reduce Obligations under the Notes in accordance with the provisions set forth under Section 3.07, through open market purchases of the Notes or through an offer to purchase Notes (in accordance with the procedures set forth below for an Asset Disposition Offer); provided, that all Net Cash Proceeds used to make such an offer to purchase shall be deemed to have been so applied whether or not accepted by the Holders; or
(4) to reduce or repay Obligations under the Notes in accordance with the provision set forth under Section 3.07, through open market purchases of the Notes or through an offer to purchase Notes (in accordance with the procedures set forth below for an Asset Disposition Offer); provided, that all Net Cash Proceeds used to make such an offer to purchase shall be deemed to have been so applied whether or not accepted by the Holders; provided that a binding commitment to apply Net Cash Proceeds as set forth in Section 4.11(b)(2) shall be treated as a permitted application of the Net Cash Proceeds from the date of such Asset Disposition (such period, commitment so long as the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company Issuer or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will retire be applied to satisfy such Indebtedness and will cause commitment within 180 days of the related commitment end of such 365-day period (if anyan “Acceptable Commitment”) to be permanently reduced and, in an amount equal to the principal amount so prepaidevent any Acceptable Commitment is later cancelled or terminated for any reason before the Net Cash Proceeds are applied in connection therewith, repaid or purchased, or
(ii) to then the extent the Company Issuer or such Restricted Subsidiary electsshall be permitted to apply the Net Cash Proceeds in any manner set forth above before the expiration of such 180-day period and, in the event the Issuer or such Restricted Subsidiary fails to invest in Replacement Assets do so, then such Net Cash Proceeds shall constitute Excess Proceeds (as defined below).
(c) Any Net Cash Proceeds from an Asset Disposition that are not invested or applied as provided and within the applicable Application Period; and
(btime period set forth in Section 4.11(b) second, will be deemed to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, constitute “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward . The Issuer shall make an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors all Holders of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause Notes (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to and all holders of other Senior Indebtedness outstanding Pari Passu Payment Lien Obligations containing provisions similar to those set forth in this Indenture with similar provisions requiring the Company respect to make an offer offers to purchase such Senior Indebtedness purchase, prepay or redeem with the proceeds from any Asset Disposition (“Pari Passu Notes”) of sales of assets to purchase purchase, prepay or redeem the maximum aggregate principal amount of the Notes (equal to $2,000 or integral multiples of $1,000 in excess thereof) and any such Pari Passu Notes to which Payment Lien Obligations (plus all accrued interest on such Indebtedness and the Asset Disposition Offer applies amount of all fees and expenses, including premiums, incurred in connection therewith), that may be purchased out of the Excess Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event such Pari Passu Payment Lien Obligations were issued with original issue discount, 100% of the Notes and Pari Passu Notes accreted value thereof), plus accrued and unpaid interest to, but not including, the date fixed for the closing of such offer (subject to the rights of Holders on the relevant record date of purchaseto receive interest due on the relevant interest payment date), in accordance with the procedures set forth herein in this Indenture or the agreements governing the such Pari Passu NotesPayment Lien Obligations, as applicable. The Issuer shall commence an Asset Disposition Offer with respect to Excess Proceeds within 30 days after the date that Excess Proceeds exceed $30.0 million by delivering the notice required pursuant to Section 3.10, in each case in integral multiples with a copy to the Trustee. The Issuer may, at its election, satisfy the foregoing obligations with respect to any Net Cash Proceeds from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Cash Proceeds prior to the expiration of $1,000 in principal amount the relevant 365-day period (or such longer period provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amountabove).
(d) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly Payment Lien Obligations tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in any purpose not prohibited by this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer Payment Lien Obligations surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees applicable agent or similar representatives, as the case may be, of Issuer shall select such Pari Passu Notes shall select the Pari Passu Notes Payment Lien Obligations to be purchased on a pro rata basis basis, in accordance with the applicable procedures of the Depositary, based on the basis of the aggregate accreted value or principal amount of the Notes tendered (with adjustments as necessary so that no Notes will be repurchased in part in an unauthorized denomination) or such tendered Notes and Pari Passu NotesPayment Lien Obligations tendered. Upon completion of any such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to that resulted in the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 pursuant to the Asset Disposition Offer. Any Asset Disposition Offer shall be made reset to all Holders. The notice, which shall govern the terms of the Asset Disposition Offer, shall state:zero.
(1e) Pending the final application of any Excess Proceeds, the Issuer (or the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Excess Proceeds in any manner that the Asset Disposition Offer is being made pursuant to not prohibited by this Section 4.15;Indenture.
(2f) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and Issuer shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will comply, to the extent applicable, with the requirements of Rule 14(e) of 14e-l 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 the Notes pursuant to this Section 4.15an Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.15Indenture, the Company will Issuer shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under described in this Indenture by virtue of any conflictthereof.
Appears in 1 contract
Sources: Indenture
Limitation on Sales of Assets and Subsidiary Stock. (1) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1a) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cashincluding 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 not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be fair market value, as determined on in good faith by the date Board of contractually agreeing to such Asset Disposition) Directors, of the shares and assets subject to such Asset Disposition;
(2b) at least 75% of the consideration from such Asset Disposition thereof received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of cash; provided that the following shall be deemed to be cash:
cash for purposes of this clause (ab): (i) the amount of any liabilities (as shown on the face of the Company’s 's, or such Restricted Subsidiary’s then 's, most recent balance sheet), sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligationsthat are by their terms subordinated to the Securities or the Guarantees) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases assets, (ii) the Company or such Restricted Subsidiary from further liability;
(b) amount of any securities, notes or other obligations securities received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversionreceived) within 180 90 days of following the closing of such Asset Disposition; and
, (ciii) the fair market value of any Designated Noncash Consideration Telecommunications Assets received by the Company in such Asset Disposition and (iv) the fair market value of any Permitted Joint Venture Interests received by the Company or any Restricted Subsidiary in such Asset Disposition having an Disposition; provided that the aggregate Fair Market Value fair market value of all Permitted Joint Venture Interests received pursuant to this clause (as determined iv), valued, in each case, at the time of receipt, shall not exceed 10% of Consolidated Net Tangible Assets, (for purposes of this Section 4.06(1)(b), all determinations of fair market value shall be made in good faith by the Board of Directors of and evidenced by an Officers' Certificate delivered to the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in valueTrustee); and
(3c) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be,):
(i) first, to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay repay, redeem, purchase or purchase such Bank otherwise acquire Senior Indebtedness of the Company or Indebtedness (other than any Disqualified Stock) of a Restricted Wholly Owned Subsidiary (in each case, other than Indebtedness owed to the Company or an Affiliate of the Company and other than Preferred Stock) within 365 180 days from of the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(such periodii) second, the “Application Period”), unless to the extent such of the balance of Net Available Cash is otherwise used after application in accordance with clause (i) of this Section 4.06(1)(c), to the extent the Company or such Restricted Subsidiary elects to or enters into a binding agreement to, reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with cash in an amount equal to the amount of Net Available Cash received by, or to be received by, the Company or another Restricted Subsidiary) within 180 days of the later of such Asset Disposition or the receipt of such Net Available Cash; and
(iii) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (i) and (ii) of this Section 4.06(l)(c), to make an Offer to purchase Securities pursuant to and subject to the conditions set forth in paragraph (2) below; provided, however, that, if the Company elects (or is required by the terms of any other Senior Subordinated Indebtedness), such Offer may be made ratably to purchase the Securities and other Senior Subordinated Indebtedness of the Company; provided, however that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (ai) or (iii) of this Section 4.06(1)(c), the Company or such Restricted Subsidiary will shall retire such Indebtedness and will 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, or.
(ii1) except to the extent that the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the aggregate Net Available Cash after application from all Asset Dispositions that is not applied in accordance with this Section 4.06(1) exceeds $10,000,000.
(a2) above In the event of an Asset Disposition that requires the purchase of Securities pursuant to clause (such balance, “Excess Proceeds”c)(iii) of Section 4.06(1), is applied the Company shall be required to offer to purchase Securities tendered pursuant to an offer by the Company or such Restricted Subsidiaryfor the Securities (an "Offer") at a purchase price of 100% of their principal amount plus accrued and unpaid interest thereon, as the case may be, toward an offer to purchase Notes as set forth and Additional Amounts in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier daterespect thereof, if any, as to the Board date of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied purchase in accordance with clause the procedures (3)(aincluding prorating in the event of oversubscription) of set forth in Section 4.06(3) and to purchase other Senior Subordinated Indebtedness on the first paragraph of this Section 4.15), if terms and to the aggregate amount of Excess Proceeds exceeds $50.0 million, the extent contemplated thereby. The Company will not be required to make an offer Offer for Securities (“and other Senior Subordinated Indebtedness) pursuant to this Section 4.06 if the Net Available Cash available therefor (after application of the proceeds as provided in clauses (c)(i) and (c)(ii) of Section 4.06(1)) is less than $10,000,000 for any particular Asset Disposition Offer”) to all Holders (which lesser amount shall be carried forward for purposes of Notes and, determining whether an Offer is required with respect to the extent required by the terms of other Senior IndebtednessNet Available Cash from any subsequent Asset Disposition).
(a) Promptly, to all holders of other Senior Indebtedness outstanding with similar provisions requiring and in any event within 10 days after the Company becomes obligated to make an offer Offer, the Company shall be obligated to purchase such Senior 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest deliver to the date of purchaseTrustee 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 accordance with whole or in part (subject to prorating as hereinafter described in the procedures set forth herein or event the agreements governing the Pari Passu Notes, as applicable, in each case Offer is oversubscribed) in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in at the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, by first class mail, a notice to the Trustee and to each Holder at its registered addressprice. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum shall include (i) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form l0-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (ii) a description of material developments in the Company's business subsequent to the date of the latest of such reports, and (iii) if material, appropriate pro forma financial information) and all instructions and materials necessary to enable such Holder to tender Notes Securities pursuant to the Asset Disposition Offer. Any Asset Disposition , together with the address referred to in clause (c).
(b) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided above, the Company shall be made deliver to all Holders. The notice, which shall govern the terms Trustee an Officers' Certificate as to (i) the amount of the Asset Disposition OfferOffer (the "Offer Amount"), shall state:
(1ii) that the allocation of the Net Available Cash from the Asset Disposition Dispositions pursuant to which such Offer is being made pursuant and (iii) the compliance of such allocation with the provisions of Section 4.06(1). On such date, the Company shall also irrevocably deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust) an amount equal to the Offer Amount to be invested in Temporary Cash Investments and to be held for payment in accordance with the provisions of this Section 4.15;4.06. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancelation the Securities or portions thereof that have been properly tendered to and are to be accepted by the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the Offer Amount delivered by the Company to the Trustee is greater than the purchase price of the Securities (and other Senior Subordinated Indebtedness) tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(2c) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note Security purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the NoteSecurity, with the an appropriate form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes duly completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent Company at the address specified in the notice at least three days before Business Days prior to the Asset Disposition Purchase Date;
(7) that . Holders shall be entitled to withdraw their election if the Company, the Depository Trustee or the Paying Agent, as the case may be, receives, Company receives not later than the second business day one Business Day prior to the Asset Disposition Purchase Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note Security which was delivered by the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note Security purchased;
(8) that, if . If at the expiration of the Offer Period the aggregate principal amount of Notes Securities and any other Senior Subordinated Indebtedness included in the Offer surrendered by Holders holders thereof exceeds the Asset Disposition Offer Amount, the Company shall select the Notes Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes Securities and other Senior Subordinated Indebtedness in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) that . Holders whose Notes were Securities are purchased only in part shall will be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer); andSecurities surrendered.
(10d) all other procedures, if any, determined by At the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in time the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid Company delivers Securities to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will Trustee which are to be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Dateaccepted for purchase, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will also deliver to the Trustee an Officers’ ' Certificate stating that such Notes or portions thereof were Securities are to be accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.15 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes4.06. 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company A Security shall be deemed to have sold been accepted for purchase at the properties and assets of time the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15Trustee, and shall comply with directly or through an agent, mails or delivers payment therefor to the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. surrendering Holder.
(4) The Company will shall comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes Securities pursuant to this Section 4.154.06. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.154.06, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Indenture Section by virtue of any conflictthereof.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. The Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), ) to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such any Restricted Subsidiary Subsidiary, as the case may be, elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (an “Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee Trustee, in accordance with (in the case of Global Notes) the applicable procedures of the Depository, shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of any conflict.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. The Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non non-cash) equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;; and
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank IndebtednessIndebted-ness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”)above, is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture; provided, further, that clauses (1) and (2) above shall not apply with respect to any Permitted Divestiture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 35.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes1,000. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof and other Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer surrendered by holders or lenders of such Pari Passu Notes, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes1,000. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 1,000 or an integral multiple of $1,000 in excess thereof1,000. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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 (Davita Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition Sale unless:
(1) the Company or such Restricted Subsidiary, as the case may be, Subsidiary (x) receives consideration (both cash and non cash) at the time of such Asset Sale at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
Sale (2which Fair Market Value shall be determined by the Board of Directors for any transaction (or series of transactions) involving consideration in excess of $15,000,000) and (y) the consideration received consists of cash, Cash Equivalents or other non-cash consideration, the Fair Market Value of which and basis of valuation is set forth in an Officer's Certificate; PROVIDED, HOWEVER, if at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary in connection with an Asset Sale is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2)Equivalents, each of the following no such Officer's Certificate shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet)required; and PROVIDED FURTHER, of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) HOWEVER, that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such a Restricted Subsidiary from such transferee transfers that are converted within 90 days of receipt thereof by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent so received), shall be deemed to be cash or Cash Equivalents for purposes of this provision AND that the amount of any Indebtedness of the cash received Company or such Restricted Subsidiary (other than Subordinated Obligations) that is actually assumed by the transferee in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration Sale and from which the Company or such Restricted Subsidiary is fully and unconditionally released shall be deemed to be cash for purposes of determining the percentage of cash consideration received by the Company or any such Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); andSubsidiary;
(32) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Sale is applied by the Company (or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary at its election within 365 270 days from the date of such Asset Disposition Sale:
(A) to prepay or repay Senior Indebtedness and permanently reduce the commitments, if any, with respect thereto; or
(i) to make an investment in properties or assets that replace the properties or assets that were the subject of such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise Asset Sale or in properties or assets that will be used in accordance with clause a Related Business or (ii)) to acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock; providedPROVIDED that such Person is, howeverat the time it becomes a Restricted Subsidiary, engaged in a Related Business; PROVIDED FURTHER that, in connection with any prepayment, repayment or purchase the case of any such Indebtedness pursuant to this clause items (ai) and (ii), the Company may elect to deem such an investment or acquisition made within 180 days prior to such Restricted Subsidiary will retire Asset Sale to have been made with Net Available Cash resulting from such Indebtedness Asset Sale. In determining whether an investment or acquisition of the type referred to in (i) and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) above was made within the applicable time limits, such investment or acquisition shall be deemed to have been made, at the extent election of the Company, either on the date the Company or such Restricted Subsidiary elects, actually made the investment or acquisition or the date the Company or Restricted Subsidiary executed a binding commitment to invest in Replacement Assets consummate such investment or acquisition and the closing of such investment or acquisition occurs within 90 days of the applicable Application Period; anddate such commitment is executed.
(b) second, to the extent of the balance of the Any Net Available Cash after application not applied as provided in accordance with clause (2) of paragraph (a) above (such balance, “will be deemed to constitute "Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture". On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if When the aggregate amount of Excess Proceeds exceeds $50.0 10 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make (an offer to purchase such Senior Indebtedness with the proceeds from any "Asset Disposition (“Pari Passu Notes”Sale Offer") to purchase purchase, on a pro rata basis, the maximum principal amount of Notes and any such Pari Passu Notes equal in amount to which the Asset Disposition Offer applies that may be purchased out of the Excess ProceedsProceeds (and not just the amount thereof that exceeds $10 million) (the "Asset Sale Offer Amount"), at an offer a purchase price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes thereof plus accrued and unpaid interest thereon to the date of purchasepurchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth herein or in this Indenture, and in accordance with the agreements governing following standards:
(1) If the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in aggregate principal amount (provided that of Notes surrendered by Holders thereof exceeds the unpurchased portion amount of any Note Excess Proceeds, the Trustee shall not select the Notes to be less than $2,000 in purchased on a pro rata basis, based on the principal amount) oramount of Notes tendered, in the case of Pari Passu Notes, in with such other integral multiples adjustments as may be specified deemed appropriate by the Trustee, so that only Notes in the agreements governing the Pari Passu Notes. To the extent that denominations of $1.00 or integral multiples thereof shall be purchased.
(2) If the aggregate principal amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an such Asset Disposition Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes, purposes (subject to the other covenants contained in provisions of this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes). Upon completion of such an Asset Disposition Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset at to zero. Each , subject to any subsequent Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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:Sale.
(1c) that the Asset Disposition Offer is being made pursuant to this Section 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of ControlSection 5.01 below, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15covenant, and shall comply with the provisions of this Section 4.15 covenant with respect to such deemed sale as if it were an Asset DispositionSale. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant.
(d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant.
(e) Each Asset Sale Offer will be mailed to the record Holders as shown on the register of Holders within 30 days following the date the amount of Excess Proceeds exceeded $10 million, with a copy to the Trustee, and shall comply with the procedures set forth herein. Upon receiving notice of the Asset Sale Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1.00 in exchange for cash. To the extent Holders of Notes and holders of other Senior Subordinated Indebtedness, if any, which are or is the subject of an Asset Sale Offer properly tender Notes or such other Senior Subordinated Indebtedness in an aggregate amount exceeding the amount of unapplied Excess Proceeds, Notes of tendering Holders and such other Senior Subordinated Indebtedness of tendering holders will be purchased on a pro rata basis (based on amounts tendered).
(f) Upon surrender and cancellation of a Certificated Note that is purchased in part, the Company shall promptly issue and the Trustee shall authenticate and deliver to the surrendering Holder of such Certificated Note, a new Certificated Note equal in principal amount to the unpurchased portion of such surrendered Certificated Note; PROVIDED that each such new Certificated Note shall be in a principal amount of $1.00 or an integral multiple thereof.
(g) Upon surrender of a Global Note that is purchased in part, the Paying Agent shall forward such Global Note to the Trustee who shall make a notation on Schedule A thereof to reduce the principal amount of such Global Note, as provided in Section 4.15. 2.05(c) hereof.
(h) The Company will shall comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.154.11. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15Section, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Indenture Section 4.11 by virtue of any conflictthereof.
Appears in 1 contract
Sources: Indenture (Paragon Trade Brands Inc)
Limitation on Sales of Assets and Subsidiary Stock. The Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), ) to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such any Restricted Subsidiary Subsidiary, as the case may be, elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee Trustee, in accordance with the applicable procedures of the Depository, shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of any conflict.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any consummate an Asset Disposition Sale unless:
(1) the Company or such the applicable Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) at the time of the Asset Sale at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;sold or otherwise disposed of as determined in good faith by the Board of Directors of the Company (including the value of all non-cash consideration); and
(2) at least 75% of the consideration from such Asset Disposition received for the assets sold by the Company or such the Restricted Subsidiary, as the case may be, is in the Asset Sale will be in the form of cash or cash, Cash Equivalents or Replacement Assetsassets or Capital Stock which the Company or a Permitted Investing Subsidiary would be permitted to use the Net Cash Proceeds from such Asset Sale to purchase or invest in, if any, pursuant to clause (2) of Section 3.12(b). For the purposes of this clause (2), each of the following shall be are deemed to be cash:
(ai) any Indebtedness and other liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent consolidated balance sheet), sheet of the Company or any Restricted Subsidiary prior to the date of such Asset Sale (other than contingent liabilities and Subordinated ObligationsIndebtedness) (i) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases and (ii) for which the Company or and its Restricted Subsidiaries are released from all liability at the time of such Restricted Subsidiary from further liabilityAsset Sale;
(bii) any securities, notes or other obligations Obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted converted, sold or exchanged by the Company or such Restricted Subsidiary into cash (or Cash Equivalents within 90 days, to the extent of the cash or Cash Equivalents received in that conversion) within 180 days of the closing of such Asset Disposition, sale or exchange; and
(ciii) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in such Asset Disposition Sale having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (ciii) that is at that time outstanding, not to exceed $100.0 million (5.0 million, with the Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and.
(3b) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the The Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any a Restricted Subsidiary, as the case may be, elects may (or is required by subject to the terms proviso in clause (2) below) apply the Net Cash Proceeds of any Bank Indebtedness), to such Asset Sale within 360 days thereof to:
(1) prepay, repay repay, purchase, repurchase, redeem, retire, defease or purchase such Bank otherwise retire for value (collectively, “repay”) any:
(i) secured Indebtedness of the Company or a Restricted Subsidiary;
(ii) Indebtedness of any Restricted Subsidiary that is not a Note Guarantor; or
(iii) any Senior Indebtedness, provided that, if the Company repays any Senior Indebtedness other than the Notes, it must repay Notes or make an offer to repurchase the Notes at a price equal to or above 100% of the principal amount thereof, whether or not the Holders accept such offer, in each case on a pro rata basis with such other Senior Indebtedness; in the case of each of clauses (i) through (iii) above, constituting Indebtedness for borrowed money or Capitalized Lease Obligations, and permanently reduce the commitments with respect thereto without Refinancing; or
(2) purchase or otherwise invest in:
(i) assets (other than current assets as determined in accordance with GAAP or Capital Stock) to be used by the Company or a Permitted Investing Subsidiary in a Permitted Business or capital expenditures;
(ii) all or substantially all of the assets of a Permitted Business or properties; or
(iii) Capital Stock of: (A) a Restricted Subsidiary held by a Person other than the Company or any of its Restricted Subsidiaries or (B) a Person engaged in a Permitted Business that becomes, upon the purchase or investment, a Wholly Owned Subsidiary or, in the case of an Asset Sale in respect of assets or Capital Stock of a Restricted Subsidiary, a Restricted Subsidiary within 365 days of which the Company owns, directly or indirectly, an equal or greater percentage of the economic and voting interests of its Capital Stock as it does (immediately prior to such Asset Sale) in respect of the Restricted Subsidiary whose assets or Capital Stock are included in such Asset Sale; provided that (A) the following Persons may make a purchase or investment in accordance with the foregoing: (x) the Company, (y) a Wholly Owned Subsidiary or (z) in the case of an Asset Sale in respect of assets or Capital Stock held by a Restricted Subsidiary only, a Restricted Subsidiary of which the Company, owns directly or indirectly, an equal or greater percentage of the economic and voting interests of its Capital Stock as it does of the Restricted Subsidiary that made such Asset Sale and (B) no purchase from the Company or any Restricted Subsidiary will satisfy the provisions of this clause (2) (each, other than the Company, a “Permitted Investing Subsidiary”); provided that (x) in the case of clause (2) above, a binding commitment shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment so long as the Company, or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 90 days of such commitment (an “Acceptable Commitment”) and such Net Cash Proceeds are actually applied to satisfy such commitment within the later of (i) 360 days after receipt of the Net Cash Proceeds from the related Asset Disposition Sale and (ii) 90 days after the date of such period, the “Application Period”), unless binding commitment and (y) to the extent such Net Available Cash is otherwise used Proceeds are not actually applied to satisfy such commitment within the period set forth in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a)x) above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount Net Cash Proceeds not so prepaid, repaid or purchased, orapplied shall constitute Excess Proceeds.
(iic) to To the extent the Company all or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance a portion of the Net Available Cash after application Proceeds of any Asset Sale are not applied within 360 days thereof (or such longer period as permitted pursuant to an Acceptable Commitment as provided in accordance with Section 3.12(b) above) as described in clause (a1) or (2) of Section 3.12(b) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward will make an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an “Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15Sale Offer”), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to at a purchase such Senior 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes to be purchased, plus accrued and unpaid interest thereon, to the date of purchasepurchase (the “Asset Sale Offer Amount”). The Company will purchase pursuant to an Asset Sale Offer from all tendering Holders on a pro rata basis in the manner provided in Section 5.5, and, at the Company’s option, on a pro rata basis with the holders of any other Senior Indebtedness with similar provisions requiring the Company to offer to purchase the other Senior Indebtedness with the proceeds of Asset Sales, that principal amount (or accreted value in the case of Indebtedness issued with original issue discount) of Notes and the other Senior Indebtedness to be purchased equal to such unapplied Net Cash Proceeds. The Company may satisfy its Obligations under this Section 3.12 with respect to any Net Cash Proceeds by making an Asset Sale Offer prior to the expiration of 360 days from the relevant Asset Sale (or, in the event an Acceptable Commitment has been entered into as set forth in Section 3.12(b) above, the later date of the 360th day following the Asset Sale or the expiration of the 90-day period set forth in Section 3.12(b) above).
(d) The purchase of Notes pursuant to an Asset Sale Offer will occur not less than 20 Business Days following the date thereof, or any longer period as may be required by law, nor more than 45 days following the 360th day following the Asset Sale (or, in the event an Acceptable Commitment has been entered into as set forth in Section 3.12(b), the later date of the 360th day following the Asset Sale or the expiration of the 90-day period set forth in such Section 3.12(b)). The Company may, however, defer an Asset Sale Offer until there is an aggregate amount of unapplied Net Cash Proceeds from one or more Asset Sales equal to or in excess of $7.5 million. At that time, the entire amount of unapplied Net Cash Proceeds, and not just the amount in excess of $7.5 million, will be applied as required pursuant to this Section 3.12. Pending application in accordance with this Section 3.12, Net Cash Proceeds will be applied to temporarily reduce revolving credit borrowings, Invested in Cash Equivalents or used for general corporate purposes.
(e) Each Asset Sale Offer Notice will be mailed first class, postage prepaid, to the procedures record Holders as shown on the register of Holders within 30 days following such 360th day (or, in the event an Acceptable Commitment has been entered into as set forth herein in Section 3.12(b) above, the later date of the 360th day following the Asset Sale or the agreements governing expiration of the Pari Passu Notes90-day period set forth in such Section 3.12(b)), with a copy to the Trustee offering to purchase the Notes as applicabledescribed above. Each Asset Sale Offer Notice will state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date the notice is mailed, other than as may be required by law (the “Asset Sale Offer Payment Date”). Upon receiving notice of an Asset Sale Offer, Holders may elect to tender their Notes in each case whole or in part in a principal amount of $2,000 or integral multiples of $1,000 in principal amount excess thereof in exchange for cash.
(provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amountf) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of On the Asset Disposition Sale Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 Company will, to the extent lawful, :
(1) accept for paymentpayment all Notes or portions thereof properly tendered pursuant to the Asset Sale Offer;
(2) deposit with the Paying Agent funds in an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Company.
(g) To the extent Holders of Notes and holders of other Senior Indebtedness, if any, which are the subject of an Asset Sale Offer properly tender and do not withdraw Notes or the other Senior Indebtedness in an aggregate amount exceeding the amount of unapplied Net Cash Proceeds, the Company will purchase the Notes and the other Senior Indebtedness on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount (based on amounts tendered). If only a portion of Notes and Pari Passu Notes or portions of such Notes and Pari Passu Notes so validly tendered and not properly withdrawn a Note is purchased pursuant to the an Asset Disposition Sale Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased the portion thereof not purchased will be issued in the name of the Holder thereof upon cancellation of the original Note surrendered; provided that each such new (or appropriate adjustments to the principal amount of a global Note will be in a principal made, as appropriate). Notes (or portions thereof) purchased pursuant to an Asset Sale Offer will be cancelled and cannot be reissued. Upon completion of an Asset Sale Offer, the amount of $2,000 or Net Cash Proceeds will be reset at zero. Accordingly, to the extent that the aggregate amount of Notes and other Indebtedness tendered pursuant to an integral multiple Asset Sale Offer is less than the aggregate amount of $1,000 in excess thereof. In additionunapplied Net Cash Proceeds, the Company will take may use 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets remaining Net Cash Proceeds for general corporate purposes of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. Subsidiaries.
(h) The Company will comply, to the extent applicable, comply with the requirements of Rule 14(e) of 14e-1 under the Exchange Act and any other applicable securities laws or regulations in connection with the repurchase purchase of Notes pursuant to this Section 4.15an Asset Sale Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with provisions of this Section 4.153.12, the Company will comply with the applicable securities these laws and regulations and will not be deemed to have breached its obligations under this Indenture Section 3.12 by virtue of any conflictdoing so.
Appears in 1 contract
Sources: Indenture (MDC Partners Inc)
Limitation on Sales of Assets and Subsidiary Stock. (1) The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries to, Subsidiary Guarantors to make any Asset Disposition Sale of Collateral unless:
(1a) the Company Issuer or such Restricted SubsidiarySubsidiary Guarantor, as the case may be, receives consideration (both cash and non cash) at least equal to not less than the Fair Market Value fair market value (such ▇▇▇▇ ▇▇▇▇▇▇ Value fair market value to be determined on the date of contractually agreeing to such Asset DispositionSale) of the shares and assets subject to such Asset DispositionSale;
(2b) in the case of Asset Sales involving consideration in excess of $5.0 million, the fair market value is determined in good faith by the Board of Directors (including as to the value of all non-cash consideration);
(c) at least 75% of the consideration from such Asset Disposition Sale received by the Company Issuer or such Restricted SubsidiarySubsidiary Guarantor, as the case may be, is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset DispositionEquivalents; and
(cd) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in remaining consideration (other than Excluded Assets) from such Asset Disposition having an aggregate Fair Market Value (as determined Sale that is not in good faith by the Board form of Directors cash or Cash Equivalents is substantially simultaneously with its acquisition pledged under the Collateral Documents, with the Lien on such Collateral securing the Notes being of the Company)same priority with respect to the Notes as the Lien on the assets disposed of. Subject to the terms of the Intercreditor Agreement and any Credit Agreement Obligation, taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from any Asset Sales of Collateral or Recovery Event shall, within 365 days from the later of (i) the date of such Asset Disposition:
Sale or Recovery Event and (ii) the date of receipt of such Net Available Cash, at the Issuer’s election, (a) first, is applied be used by the Company Issuer or a Subsidiary Guarantor to invest in Additional Assets (which may include performance of a restoration of the affected Collateral in the event of a Recovery Event), which Additional Assets are substantially simultaneously with their acquisition pledged under the Collateral Documents (or, in the case of real property, mortgaged as and when required by Section 10.05), with the Lien on such Restricted Subsidiary, Collateral securing the Notes being of the same priority with respect to the Notes as the case may be,
Lien on the assets disposed of, (ib) be used to permanently prepay or permanently repay any Indebtedness constituting Credit Agreement Obligations or other First Priority Lien Obligations or (c) be applied toward an Asset Sale Offer as Excess Proceeds (as defined and as provided below); provided, however, that if the Issuer or any Subsidiary Guarantor completes an Asset Sale of Collateral (other than any Current Premises) constituting a Sale/Leaseback Transaction within 270 days from initiating the investment in the property subject to such Sale/Leaseback Transaction (the total amount of such investment in such property during such 270 day period shall be referred to as the “Initial Investment”), the Issuer shall only be required to, within 365 days of such Sale/Leaseback Transaction, apply an amount of Designated Sale/Leaseback Consideration received from such Sale/Leaseback Transaction equal to (A) the Net Available Cash from such Sale/Leaseback Transaction minus (B) an amount equal to the extent Initial Investment in accordance with clauses (a), (b) or (c) above. In the Company case of any application of Net Available Cash or any Restricted SubsidiaryDesignated Sale/Leaseback Consideration pursuant to clause (a) of the preceding paragraph, a binding commitment shall be treated as a permitted application of the Net Available Cash or Designated Sale/Leaseback Consideration, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition commitment so long as the Issuer or the applicable Subsidiary Guarantor enters into such commitment (such period, a “Collateral Acceptable Commitment”) with the “Application Period”), unless to the extent good faith expectation that such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted SubsidiaryDesignated Sale/Leaseback Consideration, as the case may be, toward an offer will be applied to purchase Notes as set forth satisfy such commitment within 180 days of such commitment and, in the next succeeding paragraph; providedevent any Collateral Acceptable Commitment is later cancelled or terminated for any reason before the Net Available Cash or Designated Sale/Leaseback Consideration, howeveras the case may be, is applied in connection therewith, the Issuer or such Subsidiary Guarantor enters into another Collateral Acceptable Commitment (a “Collateral Second Commitment”) within 90 days of such cancellation or termination and with the good faith expectation that pending such Net Available Cash or Designated Sale/Leaseback Consideration, as the case may be, will be applied within 180 days of such Collateral Second Commitment, it being understood that if a Collateral Second Commitment is later cancelled or terminated for any reason before such Net Available Cash or Designated Sale/Leaseback Consideration, as the case may be, is applied, then such Net Available Cash or Designated Sale/Leaseback Consideration, as the case may be, shall constitute (and be applied as) Excess Proceeds. Pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) abovethis Section 4.10(1), the Company Issuer and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture, the Collateral Documents or any Credit Agreement Obligation.
(2) The Issuer will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Sale of assets or property not constituting Collateral unless:
(a) the Issuer or such Restricted Subsidiary, as the case may be, receives consideration at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Sale), of the shares and assets subject to such Asset Sale;
(b) in the case of Asset Sales involving consideration in excess of $5.0 million, the fair market value is determined in good faith by the Board of Directors (including as to the value of all non-cash consideration);
(c) at least 75% of the consideration from such Asset Sale received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and
(d) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied by the Issuer or such Restricted Subsidiary, as the case may be, within 365 days from the later of the date of such Asset Sale and the receipt of such Net Available Cash, as follows:
(A) to permanently reduce (and permanently reduce commitments with respect thereto) Credit Agreement Obligations or other First Priority Lien Obligations;
(B) to permanently reduce obligations under other Indebtedness of the Issuer (other than any Disqualified Stock or Subordinated Obligations) or Indebtedness of a Restricted Subsidiary (other than any Disqualified Stock or Guarantor Subordinated Obligations) (in each case other than Indebtedness owed to the Issuer or an Affiliate of the Issuer); provided that the Issuer shall equally and ratably reduce obligations under the Notes as provided under Section 3.07 through open market purchases or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid;
(C) to invest in Additional Assets; provided that, to the extent such Additional Assets are of the type that would constitute Collateral under the Collateral Documents, such Additional Assets are concurrently added to the Collateral securing the Notes and the Note Guarantees in the manner and to the extent required in this Indenture or any of the Collateral Documents;
(D) applied as Excess Proceeds to make an Asset Sale Offer (as defined and as provided below); or
(E) any combination of the foregoing. In the case of clause (C), a binding commitment shall be treated as a permitted application of the Net Available Cash from the date of such commitment so long as the Issuer or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Available Cash will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) 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 90 days of such cancellation or termination and with the good faith expectation that such Net Available Cash will be applied within 180 days of such Second Commitment, it being understood that if a 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. Pending the final application of any such Net Available Cash in accordance with clause (A), (B), (C), (D) or (E) 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, the Collateral Documents or any Credit Agreement Obligation.
(3) For the purposes of clauses (1)(c) and (2)(c) above and for no other purpose, the following will be deemed to be cash:
(a) any liabilities (as shown on the Issuer’s or such Restricted Subsidiary’s most recent balance sheet) of the Issuer or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes or the Note Guarantees) that are assumed by the transferee of any such assets and from which the Issuer and all Restricted Subsidiaries have been validly released;
(b) any 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 (to the extent of the cash received) within 180 days following the closing of such Asset Sale; and
(c) Designated Non-cash Consideration received by the Issuer or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Issuer), taken together with all other Designated Non-cash Consideration received pursuant to this clause (3) that is at that time outstanding not to exceed an amount equal to the greater of (x) $5.0 million and (y) 3.0% of Consolidated Net Tangible Assets at the time of the receipt of such Designated Non-cash Consideration (with the fair market value of each item of Designated Non-cash Consideration being measured at the time received without giving effect to subsequent change in value).
(4) Any Net Available Cash from Asset Sales (including Asset Sales of Collateral) or Recovery Events that is not applied or invested as provided in the preceding subsections (1) and (2) of this Section 4.10 or in accordance with the Collateral Documents will be deemed to constitute “Excess Proceeds.” On or before the 366th day after an Asset Disposition (Sale or such earlier date, if anyRecovery Event, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not may be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15)extended as described above, if the aggregate amount of Excess Proceeds exceeds $50.0 20.0 million, the Company will be required to Issuer shall make an offer (“Asset Disposition Sale Offer”) in accordance with the procedures set forth in Section 3.09 to all Holders of Notes and, and to the extent required by the terms of other Senior IndebtednessPari Passu Lien Obligations, to all holders of other Senior Indebtedness Pari Passu Lien Obligations outstanding with similar provisions requiring the Company Issuer to make an offer to purchase such Senior Indebtedness Pari Passu Lien Obligations with the proceeds from any Asset Disposition Sale or Recovery Event (“Pari Passu Notes”) ), to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Sale Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein in this Indenture or the agreements governing the Pari Passu Notes, as applicable, in each case in denominations of $2,000 and integral multiples of $1,000 1.00 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notesexcess thereof. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Sale Offer is less than the Excess Proceeds, the Company Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof and other Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer surrendered by Holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Sale Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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: Senior Secured Notes Indenture (Lri Holdings, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make consummate any Asset Disposition unlessSale unless the following conditions are met:
(1i) the Company (or such Restricted the Subsidiary, as the case may be, ) receives consideration (both cash and non cash) at the time of such Asset Sale at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be as determined on in good faith by the date of contractually agreeing to such Asset DispositionCompany) of the shares and assets subject to such Asset Disposition;or Equity Interests issued or sold or otherwise disposed of; and
(2ii) at least 75% of the consideration from such Asset Disposition therefor received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets. For cash equivalents, provided that, for purposes of this clause (2)provision, each of the following shall be deemed to be cash:
(aA) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), ) of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligationsliabilities that are by their terms subordinated to the Notes and liabilities that are owed to the Company or any Affiliate of the Company) that are assumed by the transferee of any such assets by operation of law or pursuant to a customary written novation agreement or an indemnification arrangement that releases or covers the Company or such Restricted Subsidiary from further liability;; and
(bB) any securities, notes securities or other obligations (other than promissory notes) received by the Company or any such Restricted Subsidiary from such transferee that are within 180 days (subject to ordinary settlement periods) converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash or cash equivalents received in that conversion) within 180 ). Within 365 days after the receipt of the closing of such any net proceeds from an Asset Disposition; and
(c) any Designated Noncash Consideration received by Sale, the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) may apply an amount equal to 100% of the Net Available Cash from such Asset Disposition:
net proceeds at its option: (ax) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank repurchase (1) Indebtedness of a Subsidiary, or (2) 2027 Notes; or (y) to invest in (or enter into a legally binding agreement to invest in) or purchase replacement assets or to make a capital expenditure in or that is used or useful in the Company or business of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii)Company; provided, however, that, in connection with any prepayment, repayment or purchase that if after application of any such Indebtedness pursuant to this clause (a)the net proceeds from an Asset Sale, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment remaining unapplied Net Proceeds, if any (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) aboveexceed $5,000,000, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will shall be required to make an offer (“Asset Disposition Sale Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) to purchase repurchase on a pro rata basis the maximum principal amount of Notes and any up to the amount of such Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the outstanding principal amount of the Notes and Pari Passu Notes to be redeemed, plus accrued and unpaid principal or interest to thereon to, but excluding, the date of purchasepurchase (subject to the rights of Holders of record on any record date to receive payments of principal and interest on the related Quarterly Payment Date), in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case this Indenture in integral multiples of $1,000 (except that no Note will be purchased in part if the remaining principal amount (provided that the unpurchased portion of any Note shall not would be less than $2,000 in principal amount2,000).
(1) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Sale Offer is less than the Excess Proceeds, the Company may use any remaining portion of such Excess Proceeds that is not applied to purchase Notes (“Unutilized Excess Proceeds”) for general corporate purposes, the repayment of Indebtedness or as otherwise required pursuant to its other contractual requirements, subject to other covenants contained in the terms of this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer surrendered by Holders exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased shall be selected in accordance with the policies and procedures of the applicable depositary on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such .
(2) The Asset Disposition Offer, the amount of Excess Proceeds Sale Offer shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Sale Offer Period”). No later than five Business Days after the termination of the Asset Disposition Sale Offer Period (the “Asset Disposition Sale Purchase Date”), the Company will shall purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 3.17 (the “Asset Disposition Sale Offer Amount”) or, if less than the Asset Disposition Sale Offer Amount has been so validly tenderedtendered and not properly withdrawn, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Sale Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;.
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 Sale Purchase Date, the Company willshall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Sale Offer Amount of Notes and Pari Passu Notes or portions of such Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Sale Offer, or if less than the Asset Disposition Sale Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Notes so validly tendered and not properly withdrawn, in each case in integral multiples minimum denominations of $1,000 (except that no Note shall be purchased in part if the remaining principal amount (provided that the unpurchased portion of any Note shall not would be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes2,000). The Company or the Paying Agent, as the case may be, will shall promptly (but in any case not later than five Business Days after termination of the Asset Disposition Sale Offer Period) mail or deliver pay 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 will shall promptly issue a new Note, and the Trustee, upon delivery receipt of an Officers’ Certificate from the CompanyAuthentication Order, will 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 shall be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Note not so accepted will shall be promptly mailed or delivered by the Company to the Holder thereof. .
(4) The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.153.17. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.153.17, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Indenture by virtue Section 3.17.
(b) Neither the Company nor any of its Subsidiaries shall issue, sell, transfer or otherwise dispose of any conflictCapital Stock of a Subsidiary, except to the Company or one of its other Subsidiaries that agrees to hold the transferred shares subject to the terms of this Section 3.17, unless (1) the Company sells, transfers or otherwise disposes of the entire Capital Stock of the Subsidiary at the same time for cash or property that is at least equal to the Fair Market Value of the Capital Stock or (2) the Company sells, transfers or otherwise disposes of any Capital Stock of a Subsidiary for at least Fair Market Value and, after giving effect thereto, the Company and its Subsidiaries would own more than 80% of the issued and outstanding Voting Stock of such Subsidiary. For purposes of the foregoing, Fair Market Value shall be as determined by the Company or the Board of Directors of the Company, as set forth in the definition of Fair Market Value.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any consummate an Asset Disposition Sale unless:
(1) the Company or such the applicable Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) at the time of the Asset Sale at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;sold or otherwise disposed of as determined in good faith by the Board of Directors of the Company (including the value of all non-cash consideration); and
(2) at least 75% of the consideration from such Asset Disposition received for the assets sold by the Company or such the Restricted Subsidiary, as the case may be, is in the Asset Sale will be in the form of cash or cash, Cash Equivalents or Replacement Assetsassets or Capital Stock which the Company or a Permitted Investing Subsidiary would be permitted to use the Net Cash Proceeds from such Asset Sale to purchase or invest in, if any, pursuant to clause (2) of Section 3.12(b). For the purposes of this clause (2), each of the following shall be are deemed to be cash:
(aA) any Indebtedness and other liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent consolidated balance sheet), sheet of the Company or any Restricted Subsidiary prior to the date of such Asset Sale (other than contingent liabilities and Subordinated ObligationsIndebtedness) (i) that are assumed or repaid or otherwise extinguished by the transferee of any such assets pursuant to a customary novation agreement that releases and (ii) for which the Company or and its Restricted Subsidiaries are released from all liability at the time of such Restricted Subsidiary from further liability;Asset Sale;
(bB) any securities, notes or other obligations Obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted converted, sold or exchanged by the Company or such Restricted Subsidiary into cash (or Cash Equivalents within 90 days, to the extent of the cash or Cash Equivalents received in that conversion) within 180 days of the closing of such Asset Disposition; , sale or exchange; and
(cC) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in such Asset Disposition Sale having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (ciii) that is at that time outstanding, not to exceed the greater of (x) $100.0 20.0 million and (y) 5.5% of LTM EBITDA, with the Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and.
(3b) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the The Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any a Restricted Subsidiary, as the case may be, elects may (or is required by subject to the terms provisos below) apply the Net Cash Proceeds of any Bank Indebtedness), to such Asset Sale within 365 days thereof to:
(1) prepay, repay repay, purchase, repurchase, redeem, retire, defease or purchase such Bank otherwise retire for value (collectively, “repay”) any:
(A) secured Indebtedness of the Company or a Restricted Subsidiary;
(B) Indebtedness of any Restricted Subsidiary that is not a Note Guarantor; or
(C) any Senior Indebtedness, provided that, if the Company repays any Senior Indebtedness other than the Notes pursuant to this clause (iii), it must repay Notes or make an offer to repurchase the Notes at a price equal to or above 100% of the principal amount thereof, whether or not the Holders accept such offer, in each case on a pro rata basis with such other Senior Indebtedness; in the case of each of clauses (i) through (iii) above, constituting Indebtedness for borrowed money or Capitalized Lease Obligations, and permanently reduce the commitments with respect thereto without Refinancing; or
(2) purchase or otherwise invest in:
(A) assets (other than current assets as determined in accordance with GAAP or Capital Stock) to be used by the Company or a Permitted Investing Subsidiary in a Permitted Business or capital expenditures;
(B) all or substantially all of the assets of a Permitted Business or properties; or
(C) Capital Stock of: (A) a Restricted Subsidiary held by a Person other than the Company or any of its Subsidiaries or (B) a Person engaged in a Permitted Business that becomes, upon the purchase or investment, a Restricted Subsidiary or, in the case of an Asset Sale in respect of assets or Capital Stock of a Restricted Subsidiary, a Restricted Subsidiary within of which the Company owns, directly or indirectly, an equal or greater percentage of the economic and voting interests of its Capital Stock as it does (immediately prior to such Asset Sale) in respect of the Restricted Subsidiary whose assets or Capital Stock are included in such Asset Sale; or
(3) repay Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for adjustment of purchase price, deferred consideration, earn outs or similar obligations, in each case incurred in connection with the purchase or investment by the Company or a Restricted Subsidiary of or in assets or Capital Stock that occurred prior to such Asset Sale, and solely to the extent such repayment would be permitted under Section 3.12 (b)(2) herein if such purchase or investment had occurred immediately following the consummation of such Asset Sale; provided that such purchase or investment shall have occurred not more than 365 days prior to such Asset Sale; provided that in the case of Section 3.12 (b)(2) above, (A) the following Persons may make a purchase or investment in accordance with the foregoing: (x) the Company, (y) a Wholly Owned Subsidiary or (z) in the case of an Asset Sale in respect of assets or Capital Stock held by a Restricted Subsidiary only, a Restricted Subsidiary of which the Company, owns directly or indirectly, an equal or greater percentage of the economic and voting interests of its Capital Stock as it does of the Restricted Subsidiary that made such Asset Sale and (B) no purchase from the Company or any Subsidiary of the Company will satisfy the provisions of Section 3.12 (b)(2) above (each, other than the Company, a “Permitted Investing Subsidiary”); provided that (x) in the case of Section 3.12 (b)(2) above, a binding commitment shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment so long as the Company, or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and such Net Cash Proceeds are actually applied to satisfy such commitment within the later of (i) 365 days after receipt of the Net Cash Proceeds from the related Asset Disposition Sale and (ii) 180 days after the date of such period, the “Application Period”), unless binding commitment and (y) to the extent such Net Available Cash is otherwise used Proceeds are not actually applied to satisfy such commitment within the period set forth in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a)x) above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount Net Cash Proceeds not so prepaid, repaid or purchased, orapplied shall constitute Excess Proceeds.
(iic) to To the extent the Company all or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance a portion of the Net Available Cash after application Proceeds of any Asset Sale are not applied within 365 days thereof (or such longer period as permitted pursuant to an Acceptable Commitment as provided in accordance with Section 3.12(b) above) as described in clause (a1) or (2) of Section 3.12(b) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward will make an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an “Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15Sale Offer”), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to at a purchase such Senior 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes to be purchased, plus accrued and unpaid interest thereon, to the date of purchasepurchase (the “Asset Sale Offer Amount”). The Company will purchase pursuant to an Asset Sale Offer from all tendering Holders on a pro rata basis in the manner provided in Section 5.5, and, at the Company’s option, on a pro rata basis with the holders of any other Senior Indebtedness with similar provisions requiring the Company to offer to purchase the other Senior Indebtedness with the proceeds of Asset Sales, that principal amount (or accreted value in the case of Indebtedness issued with original issue discount) of Notes and the other Senior Indebtedness to be purchased equal to such Excess Proceeds. The Company may satisfy its Obligations under this Section 3.12 with respect to any Excess Proceeds by making an Asset Sale Offer at the Asset Sale Offer Amount prior to the expiration of 365 days from the relevant Asset Sale (or, in the event an Acceptable Commitment has been entered into as set forth in Section 3.12(b) above, the later date of the 365th day following the Asset Sale or the expiration of the 180-day period set forth in Section 3.12(b) above).
(d) The purchase of Notes pursuant to an Asset Sale Offer will occur not less than 20 Business Days following the date thereof, or any longer period as may be required by law, nor more than 45 days following the 365th day following the Asset Sale (or, in the event an Acceptable Commitment has been entered into as set forth in Section 3.12(b), the later date of the 365th day following the Asset Sale or the expiration of the 180-day period set forth in such Section 3.12(b)). The Company may, however, defer an Asset Sale Offer until there is an aggregate amount of Excess Proceeds from one or more Asset Sales equal to or in excess of $25.0 million. At that time, the entire amount of Excess Proceeds, and not just the amount in excess of $25.0 million, will be applied as required pursuant to this Section 3.12. Pending application in accordance with this Section 3.12, Net Cash Proceeds may be applied to reduce revolving credit borrowings, Invested in Cash Equivalents or used for general corporate purposes in accordance with this Indenture.
(e) Each Asset Sale Offer Notice will be mailed first class, postage prepaid, to the procedures record Holders as shown on the register of Holders within 30 days following such 365th day (or, in the event an Acceptable Commitment has been entered into as set forth herein in Section 3.12(b) above, the later date of the 365th day following the Asset Sale or the agreements governing expiration of the Pari Passu Notes180-day period set forth in such Section 3.12(b)), with a copy to the Trustee offering to purchase the Notes as applicabledescribed above. Each Asset Sale Offer Notice will state, among other things, the purchase date, which must be no earlier than 10 days nor later than 60 days from the date the notice is mailed, other than as may be required by law (the “Asset Sale Offer Payment Date”). Upon receiving notice of an Asset Sale Offer, Holders may elect to tender their Notes in each case whole or in part in a principal amount of $2,000 or integral multiples of $1,000 in principal amount excess thereof in exchange for cash.
(provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amountf) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of On the Asset Disposition Sale Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 Company will, to the extent lawful, :
(1) accept for paymentpayment all Notes or portions thereof properly tendered pursuant to the Asset Sale Offer;
(2) deposit with the Paying Agent funds in an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Company.
(g) To the extent Holders of Notes and holders of other Senior Indebtedness, if any, which are the subject of an Asset Sale Offer properly tender and do not withdraw Notes or the other Senior Indebtedness in an aggregate amount exceeding the amount of Excess Proceeds, the Company will purchase the Notes and the other Senior Indebtedness on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount (based on amounts tendered). If only a portion of Notes and Pari Passu Notes or portions of such Notes and Pari Passu Notes so validly tendered and not properly withdrawn a Note is purchased pursuant to the an Asset Disposition Sale Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased the portion thereof not purchased will be issued in the name of the Holder thereof upon cancellation of the original Note surrendered; provided that each such new (or appropriate adjustments to the principal amount of a Global Note will be in a principal made, as appropriate). Notes (or portions thereof) purchased pursuant to an Asset Sale Offer will be cancelled and cannot be reissued. Upon completion of an Asset Sale Offer, the amount of $2,000 or Excess Proceeds will be reset at zero. Accordingly, to the extent that the aggregate amount of Notes and other Indebtedness tendered pursuant to an integral multiple Asset Sale Offer is less than the aggregate amount of $1,000 in excess thereof. In additionExcess Proceeds, the Company will take may use 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets remaining Net Cash Proceeds for general corporate purposes of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of accordance with this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. Indenture.
(h) The Company will comply, to the extent applicable, comply with the requirements of Rule 14(e) of 14e-1 under the Exchange Act and any other applicable securities laws or regulations in connection with the repurchase purchase of Notes pursuant to this Section 4.15an Asset Sale Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with provisions of this Section 4.153.12, the Company will comply with the applicable securities these laws and regulations and will not be deemed to have breached its obligations under this Indenture Section 3.12 by virtue of any conflictdoing so.
Appears in 1 contract
Sources: Indenture (Stagwell Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cashincluding 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 not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;,
(2) at least 75% of the consideration from such Asset Disposition thereof received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash cash, assets useful in a Permitted Business or Cash Equivalents Permitted Securities, or Replacement Assets. For purposes the assumption by the purchaser of this clause (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by their terms subordinated to the transferee Notes) as a result of which the Company and the Restricted Subsidiaries are no longer obligated with respect to those liabilities; provided that the amount of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition shall be deemed to be cash for the purposes of this provision (but for no other purpose) so long as such amount, taken together with the Fair Market Value when received of all other Designated Noncash Consideration that is at that time outstanding (i.e., that has not been sold for or otherwise converted into cash or Permitted Securities), does not exceed the greater of (i) $150,000,000 and (ii) 6% of Consolidated Tangible Assets as of the last day of the most recent fiscal quarter; provided, further, that (A) securities or other assets received by the Company or any Restricted Subsidiary from such the transferee that are converted by the Company or such Restricted Subsidiary into cash (within 180 days after the closing of such Asset Disposition shall be considered to be cash to the extent of the cash received in that conversion; and (B) within 180 days any cash consideration paid to the Company or the Restricted Subsidiary in connection with the Asset Disposition that is held in escrow or on deposit to support indemnification, adjustment of the closing purchase price or similar obligations in respect of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)shall be considered to be cash, taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset DispositionDisposition is applied by the Company (or such Restricted Subsidiary, as the case may be) within 365 days after the later of the date of such Asset Disposition and the receipt of such Net Available Cash:
(aA) firstto prepay, repay, purchase, repurchase, redeem, retire, defease or otherwise acquire for value Secured Indebtedness of the Company or a Subsidiary Guarantor (other than any Disqualified Stock or Subordinated Obligations) or Indebtedness of a Restricted Subsidiary that is applied not a Subsidiary Guarantor, in each case other than Indebtedness owed to the Company or an Affiliate of the Company;
(B) 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); provided, that a binding commitment to apply Net Available Cash in accordance with this clause (B) shall be treated as an application of such Net Available Cash from the date of such commitment if (i) such reinvestment is consummated within 180 days at the end of such 365 day period referred to in this clause (3) and (ii) if such reinvestment is not consummated within the period set forth in subclause (i) or such binding commitment is terminated, the Net Available Cash shall constitute available Net Available Cash; or
(C) (i) to redeem the Notes or make open market purchases thereof at a price not less than 100% of the principal amount thereof or (ii) to make an Asset Disposition Offer to purchase Notes pursuant to and subject to the conditions set forth in Section 4.10(b); provided, however, that if the Company elects (or is required by the terms of any Pari Passu Indebtedness), such Asset Disposition Offer may be made ratably (determined based upon the respective principal amounts of the Notes and such Pari Passu Indebtedness being purchased or repaid) to purchase the Notes and to purchase or otherwise repay such Pari Passu Indebtedness; provided that pending final application of any such Net Available Cash in accordance with clause (3)(A), (B) or (C) above, the Company and the Restricted Subsidiaries may temporarily reduce revolving Indebtedness outstanding under the Existing Credit Agreement or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. To the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) above, the Company or such Restricted Subsidiary, as the case may be,
, may use such balance for any general corporate purpose not prohibited by the terms of this Indenture. In connection with any prepayment, repayment, purchase, repurchase, redemption, retirement, defeasance or other acquisition for value of Indebtedness pursuant to clause (iA) to the extent or (C) above, the Company or any such Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), 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 repaid, purchased, or
(ii) to repurchased, redeemed, retired, defeased or otherwise acquired for value. Notwithstanding the extent foregoing provisions of this Section 4.10, the Company or such and the Restricted Subsidiary elects, Subsidiaries will not be required to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of apply any such Net Available Cash in accordance with clause (a) or clause (b) above, this covenant except to the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such extent that the aggregate Net Available Cash in any manner from all Asset Dispositions that is not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds covenant exceeds $50.0 million100,000,000.
(b) In the event of an Asset Disposition that requires the purchase of Notes pursuant to Section 4.10(a)(3)(C), the Company will be required required
(i) to make purchase Notes tendered pursuant to an offer by the Company for the Notes (the “Asset Disposition Offer”) at a purchase price of 100% of their principal amount plus accrued and unpaid interest thereon to all the date of purchase (subject to the right of Holders of Notes record on the relevant date to receive interest due on the relevant Interest Payment Date) in accordance with the procedures, including prorating in the event of oversubscription, set forth in this Indenture, and,
(ii) to purchase or otherwise repay Pari Passu Indebtedness of the Company on the terms and to the extent required by contemplated thereby at the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring purchase price set forth in the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any Asset Disposition relevant documentation (“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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus including accrued and unpaid interest to the date of purchaseacquisition, in accordance with the procedures set forth herein or “purchase price”), provided that to the agreements governing extent the purchase price of any such Pari Passu Notes, as applicable, in each case in integral multiples Indebtedness exceeds 100% of $1,000 in the principal amount (provided that thereof, plus accrued and unpaid interest thereon to the unpurchased portion date of any Note acquisition, the Company shall not be less than $2,000 in principal amount) oruse any Net Available Cash to pay such purchase price, in except as permitted by the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notesnext sentence. To the extent that If the aggregate amount purchase price of Notes and Pari Passu Notes so validly Indebtedness tendered and not properly withdrawn pursuant to an the Asset Disposition Offer is less than the Excess Proceeds, Net Available Cash allotted to the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If purchase of the aggregate principal amount of Notes and Pari Passu Notes validly tendered and Indebtedness, the Company will apply the remaining Net Available Cash for any general corporate purpose not properly withdrawn pursuant prohibited by the terms of this Indenture. The Company will not be required to make an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered for Notes and Pari Passu NotesIndebtedness pursuant to this Section 4.10 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 4.10(a)(3)(A) and (B)) is less than $100,000,000 for any particular Asset Disposition (which lesser amount will be carried forward for purposes of determining whether an Asset Disposition Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon completion consummation of such any Asset Disposition Offer, the amount Net Available Cash in respect of Excess Proceeds any Asset Disposition(s) shall be reset at reduced to zero. Each Asset Disposition Offer will remain open for a period of .
(c) (i) Promptly, and in any event within 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required becomes obligated to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of make an Asset Disposition Offer, the Company shall send, by first class mail, a notice be obligated to deliver to the Trustee and send or, at the request of the Company have the Trustee send (such notice to be provided to the Trustee at least five Business Days before the Trustee is requested to send such notice unless a shorter period shall be satisfactory to the Trustee), in the name and on behalf of the Company, by first-class mail to each Holder, or in the case of Global Notes, send in accordance with the Applicable Procedures of the Depositary, a written notice stating that the Holder may elect to have its Notes purchased by the Company either in whole or in part (subject to prorating as hereinafter described in the event the Asset Disposition Offer is oversubscribed) in minimum denominations of $2,000 of principal amount or any greater integral multiple of $1,000 thereof, at its registered addressthe applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the “Purchase Date”) and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum shall include (1) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports); provided that in lieu of providing the reports specified in this subclause (1), the Company may, at its option, notify the holders that such reports are available to them in electronic format through the SEC’s ▇▇▇▇▇ system, (2) a description of material developments in the Company’s business subsequent to the date of the latest of such reports, and (3) if material, appropriate pro forma financial information) and all instructions and materials necessary to 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, together with the form entitled “Option of Holder address referred to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
clause (7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchasediii);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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 (Qorvo, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. The Company (a) Holdings will not, and will not permit any of its Restricted Subsidiaries to, make any consummate an Asset Disposition Sale unless:
(1) Holdings (or the Company or such Restricted Subsidiary, as the case may be, ) receives consideration (both cash and non cash) at the time of the Asset Sale at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on as of the date of contractually agreeing contractual agreement to such Asset DispositionSale) of the shares and assets subject to such Asset Dispositionor Equity Interests issued or sold or otherwise disposed of;
(2) in the case of an Asset Sale of Collateral, the consideration from such Asset Sale is pledged as Collateral to secure the Notes (to the extent required by the Notes Collateral Documents), at least until such time it is otherwise applied in accordance with this Section 3.5; and
(3) at least 75% of the consideration from such received in the Asset Disposition received Sale by the Company Holdings or such any of its Restricted Subsidiary, as the case may be, Subsidiaries is in the form of cash or cash, Cash Equivalents or Replacement Assets. For purposes of this clause (2)provision, each of the following shall will be deemed to be cash:
(ai) any liabilities (Indebtedness or liabilities, as shown on the face of the Company’s or such Restricted Subsidiary’s then Holdings’ 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 Holdings’ most recent 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 Holdings), of the Company Holdings or any of its Restricted Subsidiary Subsidiaries (other than contingent liabilities and Subordinated Obligationsliabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company and for which Holdings or such Restricted Subsidiary from further liabilityhas been released in writing;
(bii) any securities, notes or other obligations received by the Company Holdings or any such Restricted Subsidiary from such transferee that are converted by the Company Holdings or such Restricted Subsidiary into cash (or Cash Equivalents within 180 days of the receipt thereof, to the extent of the cash or Cash Equivalents received in that conversion;
(iii) within 180 days any stock or assets of the closing kind referred to in clauses (2) or (4) of such Asset DispositionSection 3.5(b); and
(civ) any Designated Noncash Non-cash Consideration received by the Company Holdings or any such Restricted Subsidiary in such Asset Disposition Sale having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured determined as of the date of contractual agreement to such Asset Sale) taken together with all other Designated Non-cash Consideration received pursuant to this clause (d) that is at that time outstanding not to exceed the time received without giving effect to subsequent changes in value); andgreater of (x) $10.0 million and (y) 15.0% of Consolidated EBITDA of Holdings and its Restricted Subsidiaries for the most recently ended four fiscal quarters for which internal financial statements are available.
(3b) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, Holdings or one or more of its Restricted Subsidiaries may apply an amount equal to 100% such Net Proceeds at its option to any combination of the Net Available Cash from such Asset Dispositionfollowing:
(a1) first, is applied by the Company or (x) if assets subject to such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness)Asset Sale constitute Collateral, to prepay, repay or purchase such Bank (i) Indebtedness and other Obligations under the ABL Credit Agreement (or any Permitted Refinancing Indebtedness in respect thereof), (ii) Obligations in respect of the Company Notes, (iii) Obligations in respect of Indebtedness that is secured by a Lien on the Collateral or of a Restricted Subsidiary within 365 days from (iv) Indebtedness that is secured by the date assets which are the subject of such Asset Disposition Sale and (y) if assets subject to such periodAsset Sale do not constitute Collateral, the “Application Period”)to prepay, unless repay or purchase Senior Indebtedness of Holdings or any of its Restricted Subsidiaries (other than Indebtedness owed to the extent such Net Available Cash is otherwise used in accordance with clause (iiHoldings or another Restricted Subsidiary); provided, however, that, provided that in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a1), the Company Holdings or any such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if anyother than obligations in respect of any asset-based credit facility (including Indebtedness under the ABL Credit Agreement or any Refinancing Indebtedness in respect thereof) to the extent the assets sold or otherwise disposed of in connection with such Asset Sale constituted “borrowing base assets”) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; provided further that in connection with any prepayment, orrepayment or purchase of Indebtedness other than Obligations in respect of the Notes pursuant to clause (1)(x)(iii) or (iv) or (1)(y), the Issuer shall also equally and ratably reduce Indebtedness under the Notes by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer with Excess Proceeds) to all Holders to purchase, on a pro rata basis (subject to adjustments to maintain the authorized denominations for the Notes), the principal amount of Notes, in each case, at a purchase price equal to 100.000% of the principal amount (or accreted value, as applicable) plus accrued and unpaid interest, if any, to, but excluding, the date of purchase;
(ii2) to acquire all or substantially all of the extent assets of, a division or line of business of or a majority of the Company Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or such becomes a Restricted Subsidiary electsof Holdings;
(3) to make a capital expenditure or other expenditures in connection with the construction, operation, maintenance, repair or improvement of existing properties and assets;
(4) to acquire or invest in Replacement Assets within the applicable Application Periodor acquire long-term assets in another Permitted Business; andor
(b5) secondany combination of the foregoing; provided that in the case of clauses (2), (3) and (4) above, (i) any such acquisition, expenditure or investment in accordance with such clause may be made by means of an acquisition, expenditure or investment by a Restricted Subsidiary in an amount equal to the Net Proceeds received by Holdings or another Restricted Subsidiary, (ii) if Holdings or any Restricted Subsidiary enters into a binding commitment within such 360 day period, such binding commitment shall be treated as a permitted application of the Net Proceeds from such Asset Sale if an amount equal to such Net Proceeds is applied within 180 days of the end of the 360 day period (provided further that if such commitment is later terminated or canceled before such Net Proceeds are applied and Holdings or any Restricted Subsidiary enters into another binding commitment (the “Second Commitment”) within 180 days of such cancellation or termination (or, if later, 360 days from the receipt of such Net Proceeds), such Second Commitment shall be treated as a binding commitment; provided further that if any Second Commitment is later terminated or canceled before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds if not otherwise applied as provided above within 360 days of the receipt of such Net Proceeds), (iii) if assets subject to such Asset Sale constitute Collateral, any assets acquired or investment described in clauses (2) and (4) above shall be pledged as Collateral to secure the Notes to the extent of required by the balance of Notes Collateral Documents (and pursuant to the Net Available Cash after application terms thereof) and (iv) if assets subject to such Asset Sale constitute Collateral, any such assets underlying any expenditure described in accordance with clause (a3) above (such balance, “Excess Proceeds”), is applied shall be pledged as Collateral to secure the Notes to the extent required by the Company or such Restricted Subsidiary, as Notes Collateral Documents (and pursuant to the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending terms thereof).
(c) Pending the final application of the amount of any such Net Available Cash in accordance with clause (a) Proceeds, Holdings or clause (b) above, the Company and any of its Restricted Subsidiaries may temporarily reduce Indebtedness revolving credit borrowings or otherwise invest such apply the Net Available Cash Proceeds in any manner that is not prohibited by this Indenture. On Holders of Notes may not have control of, or a perfected security interest in the 366th day after an Asset Disposition (or such earlier dateNet Proceeds, if any, as which could diminish the Board of Directors value of the Company Collateral.
(d) The amount of any Net Proceeds from Asset Sales that is not applied or such Restricted Subsidiary determines that the Net Available Cash invested as described above will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds the greater of (x) $50.0 million15.0 million and (y) 17.0% of Consolidated EBITDA, within 30 days thereof, unless waived or modified with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding, the Company Issuer will be required to make an offer (“Asset Disposition Offer”) Sale Offer to all Holders of Notes and, (with a copy to the extent required by the terms of other Senior Indebtedness, to Trustee) and all holders of other Senior Indebtedness outstanding that is pari passu with the Notes containing provisions similar provisions requiring the Company to make an offer those set forth in this Indenture with respect to offers to purchase or redeem such Senior Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) of sales of assets to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies other pari passu Indebtedness that may be purchased out of the Excess Proceeds, at Proceeds (an “Asset Sale Offer”). The offer price in cash in an amount any Asset Sale Offer will be equal to 100100.000% of the principal amount of the Notes and Pari Passu Notes being purchased, plus accrued and unpaid interest interest, if any, to but excluding, the date of purchase, and will be payable in accordance cash. The Issuer may satisfy the foregoing obligation with the procedures set forth herein respect to such Net Proceeds from Asset Sales by making an Asset Sale Offer with respect to all or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased a portion of the available Net Proceeds (the “Advance Portion”) in advance of being required to do so by this Indenture (the “Advance Offer”). If any Note shall not be less than $2,000 in principal amount) Excess Proceeds (or, in the case of Pari Passu Notesan Advance Offer, the Advance Portion) remain after consummation of an Asset Sale Offer, the Issuer may use those Excess Proceeds (or, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount case of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess ProceedsAdvance Offer, the Company may use Advance Portion) for any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly other pari passu Indebtedness tendered and not properly withdrawn pursuant to an into such Asset Disposition Sale Offer exceeds the amount of Excess ProceedsProceeds (or, in the case of an Advance Offer, the Trustee shall Advance Portion), the Issuer will select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes other pari passu Indebtedness to be purchased on a pro rata basis (with such subject to adjustments as may to maintain the authorized denominations for the Notes). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);reset at zero.
(9e) that Holders whose Notes were purchased only The Issuer will comply in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will comply, to the extent applicable, material respects with the requirements of Rule 14(e) of 14e-1 under the Exchange Act and any other securities laws or and regulations thereunder to the extent those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to this Section 4.15an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Section 4.15Indenture, the Company Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of any conflictsuch compliance.
Appears in 1 contract
Sources: Indenture (CPI Card Group Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1i) the Company or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cashincluding by way of relief from, or by any other person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to not less than the Fair Market Value fair market value (such ▇▇▇▇ ▇▇▇▇▇▇ Value fair market value to be determined on the date of contractually agreeing to such Asset Disposition) ), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition;
(2ii) at least (i) 75% for sales of assets that do not constitute Charged Property or (ii) 100% for sales of assets that constitute Charged Property, of the consideration from for such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents or Replacement Assets. For purposes Equivalents; and provided that, with respect to sales of this clause assets that do not constitute Charged Property, the amount of
(2), each A) the greater of the following shall be deemed to be cash:
(a) principal amount and the carrying value of any liabilities (as shown reflected on the face Company’s most recent consolidated balance sheet or in the footnotes thereto or, if Incurred or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Company’s consolidated balance sheet or in the footnotes thereto if such incurrence or increase had taken place on or prior to the date of such balance sheet, as determined by the Company) of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are by their terms subordinated to the Facilities, that are (1) assumed by the transferee of any such assets (or a third party in connection with such transfer) pursuant to a customary novation written agreement that which releases or indemnifies the Company from such liabilities or such Restricted Subsidiary from further liability;(2) otherwise cancelled or terminated in connection with the transaction; 212 Project Meria: Senior Facilties Agreement
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition[Reserved]; and
(cC) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board [Reserved], shall each be deemed to be Cash Equivalents for purposes of Directors of the Company), taken together with all this provision and for no other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value)purpose; and
(3iii) an amount equal to one hundred (100% ) per cent. of the Net Available Cash from such Asset DispositionDisposition is applied:
(aA) firstif the assets sold pursuant to such Asset Disposition constitute Charged Property, the Company shall be required to apply (I) one hundred (100) per cent. of the Net Available Cash from such Asset Disposition to promptly repay the Facility B2 if, pro forma for such disposition, the Proportionate Net Leverage Ratio is greater than 3.00:1.00; (II) fifty (50) per cent. of the Net Available Cash from such Asset Disposition to repay the Facility B2 if, pro forma for such disposition, the Proportionate Net Leverage Ratio is equal to or less than 3.00:1.00 but greater than 2.50:1.00 and (III); zero (0) per cent. of the Net Available Cash from such Asset Disposition to repay the Facility B2 if, pro forma for such disposition, the Proportionate Net Leverage Ratio is equal to or less than 2.50:1.00. For the avoidance of doubt, any proceeds of such Asset Disposition not required to be applied pursuant to this sub-paragraph (iii)(A) shall not constitute Excess Proceeds and may be used for any purposes not prohibited under this Agreement; and
(B) if the assets sold pursuant to such Asset Disposition do not constitute Charged Property, an amount equal to one hundred (100) per cent. of the Net Available Cash from such Asset Disposition is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of any Debt other than Debt owed to the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition Subordinated Debt and/or to invest in or commit to invest in Additional Assets,
(such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, 1) in connection with any prepayment, repayment or purchase of any such Indebtedness Debt pursuant to this clause sub-paragraph (a)B) above, the Company or such Restricted Subsidiary will retire such Indebtedness Debt and will cause the related commitment (if any) (other than in the case of any asset-based credit facility) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchasedpurchased provided further that if the Company elects that any repayment of any revolving credit facility shall constitute an application of Net Available Cash under this paragraph (B) (the amount so elected to be applied being, orthe "RCF Election Amount"), such repayment shall be accompanied by a permanent cancellation of commitments under such revolving credit facility in an amount at least equal to such RCF Election Amount;
(ii2) to in the extent the Company case of sub-paragraph (B) above, a binding commitment or letter of intent entered into not later than such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance 365th day shall be treated as a permitted application of the Net Available Cash after application from the date of such commitment or letter of intent so long as the Company 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 the later of such 365th day and one hundred and eighty (180) days of such commitment or letter of intent (an "Acceptable Commitment") or, in accordance with the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Available Cash is applied in connection therewith, the Company enters into another Acceptable Commitment (aa "Second Commitment") above within one hundred and eighty (180) days of such balancecancellation 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”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that and 213 Project Meria: Senior Facilties Agreement
(3) pending the final application of the amount of any such Net Available Cash in accordance with clause sub-paragraph (aB) above or clause (b) aboveotherwise in accordance with this Section 4, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness Debt or otherwise invest use such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition Agreement.
(or such earlier date, if any, as the Board b) The amount of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in accordance with clause paragraph (3)(aa) above will be deemed to constitute "Excess Proceeds" under this Agreement; provided that, to the extent the Company has elected to prepay, repay or purchase any amount of Debt pursuant to sub-paragraph (a)(iii)(B) above (other than Obligations under this Agreement) at a price of no less than one hundred (100) per cent. of the first paragraph principal amount thereof, and has extended such offer to the Lenders on at least a pro rata basis pursuant to Clause 8.5 (Application of this Section 4.15prepayments), if to the aggregate amount extent the creditors in respect of Excess Proceeds exceeds $50.0 millionsuch Debt (including the Lenders) elect not to tender their Debt for such prepayment, repayment or purchase, the Company will be required deemed to have applied an amount of Net Available Cash equal to such amount not tendered under this paragraph (b), and such amount shall not increase the amount of Excess Proceeds.
(c) In the case of sub-paragraph (a)(iii)(B) above, on the 366th day (or such longer period permitted by paragraph (a) above) after the later of an Asset Disposition or the receipt of such Net Available Cash, , the Company will within ten (10) Business Days make an offer (“an "Asset Disposition Offer”") to all Holders of Notes andeach Lender under the Facility, to the extent and if required or permitted by the terms of other Senior Indebtednessany Debt, to all the holders of other Senior Indebtedness such Debt, to prepay the outstanding with similar provisions requiring Facility (and only to the Company to make an offer to purchase extent the Facility is outstanding) held by any such Senior Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) Lender at par, and to purchase the maximum aggregate principal amount (or accreted value, as applicable) of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies Debt that may be purchased out of the Excess Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount of offer price required by the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchaseterms thereof, in accordance with the procedures set forth herein or in the agreements agreement(s) governing such Debt.
(d) The Company may satisfy the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of foregoing obligations with respect to any Note shall not be less than $2,000 in principal amount) or, Net Available Cash from an Asset Disposition in the case of Pari Passu Notessub-paragraph (a)(iii)(B) above, by making an Asset Disposition Offer with respect to such Net Available Cash prior to the expiration of the relevant three hundred and sixty-five (365) days (or such longer period provided above) with respect to all or part of the Net Available Cash (the "Advance Portion") in such other integral multiples as may be specified advance of being required to do so by this Agreement (an "Advance Offer").
(e) Other than in the agreements governing case of sub-paragraph (a)(iii)(A) above, Clause 8.5 (Application of prepayments) shall apply to any prepayment of the Pari Passu NotesFacility.
(f) If the aggregate principal amount (or accreted value, if applicable) of the Facility or other Debt elected to be repaid pursuant to sub-paragraph (a)(iii)(A) above, as the case may be, surrendered by such holders thereof exceeds the amount offered in the Asset Disposition Offer (or in the case of an Advance Offer, the Advance Portion), the Company shall repay the Facility and such Debt, as the case may be, on a pro rata basis based on the aggregate principal amount (or accreted value, if applicable) of the Facility offered to be repaid or such Debt, as the case may be, tendered with adjustments as necessary so that no Facility to be repaid or Debt, as the case may be, will be repurchased in part in an unauthorized denomination. Upon completion of any such Asset Disposition Offer (or Advance Offer), the amount of Excess Proceeds that resulted in the requirement to make an Asset Disposition Offer shall be reset to zero (0) (regardless of whether there are any remaining Excess Proceeds upon such completion). Upon consummation or expiration of any Asset Disposition Offer, any remaining Net Available Cash shall not be deemed Excess Proceeds and the Company may use such Net Available Cash for any purpose permitted by this Agreement. 214 Project Meria: Senior Facilties Agreement
(g) To the extent that the aggregate amount (or accreted value, if applicable) of Notes outstanding Facility prepaid and Pari Passu Notes so validly Debt, as the case may be, tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceedsamount offered in the Asset Disposition Offer (or, in the case of an Advance Offer, the Advance Portion), the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 and, in additionAdvance Offer, 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 Advance Portion) for any case purposes 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 Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations otherwise prohibited under this Indenture by virtue of any conflictAgreement.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. The Company (a) Each of Superior Energy and Issuer will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition unless:
(1) the Company Superior Energy, Issuer or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) at the time of such Asset Disposition at least equal to not less than the Fair Market Value fair market value (including as to the value of all non-cash consideration) as determined in good faith by the Board of Directors of Superior Energy, an Officer of Superior Energy, an Officer of Issuer or an Officer of such ▇▇▇▇ ▇▇▇▇▇▇ Value to Restricted Subsidiary with responsibility for such transaction, which determination shall be determined on the date conclusive evidence of contractually agreeing to such Asset Disposition) compliance with this provision, of the shares and assets subject to such Asset Disposition;
(2) in the case of an Asset Disposition for consideration exceeding $40.0 million, the fair market value is determined, in good faith, by the Board of Directors of Superior Energy, and evidenced by a resolution of the Board of Directors of Superior Energy set forth in an Officers’ Certificate delivered to the Trustee;
(3) either (a) at least 75% of the consideration from such Asset Disposition thereof received by the Company Superior Energy, Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Temporary Cash Equivalents Investments or Replacement Assets. For purposes (b) the fair market value (with the fair market value of this clause each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value) of all forms of consideration other than cash or Temporary Cash Investments received for all Asset Dispositions since the Issue Date does not exceed in the aggregate an amount equal to 10% of Consolidated Tangible Assets at the time each determination is made; and
(2), each 4) an amount equal to 100% of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s Net Available Cash from such Asset Disposition is applied by Superior Energy, Issuer or such Restricted Subsidiary’s then most recent , as the case may be, within 365 days after its receipt, at its option:
(A) to repay Secured Indebtedness under a Debt Facility;
(B) to acquire Additional Assets or to make capital expenditures in a Related Business; and
(C) to the extent of the balance sheetof 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 Indebtedness of Issuer that is pari passu with the Company Notes) to purchase Notes (and such other Indebtedness of Issuer) pursuant to and subject to the conditions contained in this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, Issuer or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment, if any, to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Pending application of Net Available Cash pursuant to this Section 4.10, such Net Available Cash shall be invested in Temporary Cash Investments or used to reduce loans outstanding under any revolving credit facility existing under a Debt Facility. For the purposes of this Section 4.10, the following are deemed to be cash or Temporary Cash Investments: (i) the assumption of Obligations of Superior Energy, Issuer or any Restricted Subsidiary (other than contingent liabilities and any of their Subordinated Obligations) that are assumed by and the transferee release of any such assets pursuant to a customary novation agreement that releases the Company Superior Energy, Issuer or such Restricted Subsidiary Subsidiary, as the case may be, from further liability;
all liability on such Obligations in connection with such Asset Disposition, (bii) any securities, notes or other obligations securities received by the Company Issuer or any such Restricted Subsidiary from such the transferee that are promptly converted by the Company Issuer or such Restricted Subsidiary into cash within 180 days after the receipt thereof (to the extent of the cash received in that conversionreceived) within 180 days of the closing of such Asset Disposition; and
and (ciii) any Designated Noncash Consideration received by the Company Superior Energy, Issuer or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (ciii) that is at that time outstanding, not to exceed the greater of (x) $100.0 30.0 million and (y) 1.5% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the Fair Market Value fair market value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
. The requirement of Section 4.10(a)(4) shall be deemed to be satisfied if an agreement (3including a lease) an amount equal committing to 100% of make the Net Available Cash from such Asset Disposition:
(a) firstacquisitions or expenditures referred to therein is entered into by Superior Energy, is applied by the Company Issuer or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of time period specified in such Asset Disposition (such period, the “Application Period”), unless to the extent clause and such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be subsequently applied in accordance with clause such agreement within six months following such agreement. Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in Section 4.10(a)(4)(A) or (3)(aB) of within the first paragraph of this Section 4.15), if time period set forth therein will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $50.0 30.0 million, the Company Issuer will be required to make an offer (“Asset Disposition Offer”) Offer to all Holders of Notes and, to the extent required by under the terms of other Senior outstanding pari passu Indebtedness of Issuer, to the holders of such outstanding pari passu Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) to purchase the maximum aggregate principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out other pari passu Indebtedness of the Excess Proceeds, at an offer price in cash Issuer in an amount equal to $2,000 or an integral multiple of $1,000 in excess thereof at a purchase price of 100% of their principal amount (or, in the event such other pari passu Indebtedness of Issuer was issued with significant original issue discount, 100% of the principal amount of the Notes and Pari Passu Notes accreted value thereof), without premium, plus accrued and but unpaid interest and Additional Interest (or, in respect of such other pari passu Indebtedness of Issuer, such lesser price, if any, as may be provided for by the terms of such Indebtedness of Issuer) to but excluding the purchase date of purchase, in accordance with the procedures set forth herein or in Section 3.09. Issuer may satisfy the agreements governing foregoing obligations with respect to such Net Available Cash from an Asset Disposition by making an offer with respect to such Net Available Cash prior to the Pari Passu Notes, as applicable, in each case in integral multiples expiration of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notesapplication period. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly such pari passu Indebtedness tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to compliance with other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer or the pari passu Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee or the applicable Registrar shall select the Notes and the holders, trustees Issuer or similar representatives, as the case may be, of Pari Passu Notes agent for such pari passu Indebtedness shall select the Pari Passu Notes such pari passu Indebtedness to be purchased on a pro rata basis based on the basis principal amount (or accreted value) of the aggregate principal amount of Notes or such tendered Notes and Pari Passu Notespari passu Indebtedness tendered. Upon completion of any such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes Superior Energy and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company Issuer will comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to Section 3.09 hereof and this Section 4.154.10. To the extent that the provisions of any securities laws or regulations conflict with provisions of Section 3.09 hereof and this Section 4.154.10, the Company each of Superior Energy and Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof and this Indenture Section 4.10 by virtue of any conflictits compliance with such securities laws or regulations. Upon the occurrence of an Investment Grade Rating Event, this Section 4.10 will cease to apply to Issuer and will no longer have effect.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1i) the The Company or such Restricted SubsidiarySubsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value, as determined in good faith by the case may beCompany (including as to the value of all non-cash consideration), receives consideration (both cash and non cash) equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(2) Disposition and at least 75% of the consideration from such thereof received, together with all other Asset Disposition received Dispositions since the Existing Notes Issue Date (on a cumulative basis), by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents Equivalents; provided, however, that in the case of an Asset Disposition (x) involving the disposition of non-core assets (as determined by the Company in its good faith judgment) acquired as part of any acquisition after the Issue Date or Replacement Assets. For purposes (y) for aggregate consideration of this clause (2)less than $100.0 million, each only 50% of the following shall consideration therefor must be deemed to be cashin the form of cash or Cash Equivalents; provided further that:
(aA) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet)promissory notes, of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes securities or other obligations or amounts received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 360 days of the receipt thereof (to the extent of the cash received in that conversionreceived) within 180 days shall be deemed to be cash solely for purposes of the closing of such Asset Disposition; this Section 10.16(a)(i), and
(cB) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (cSection 10.16(a)(i)(B) that is at that time outstanding, not to exceed the greater of (x) $100.0 150.0 million and (y) 6.0% of Consolidated Tangible Assets at the time of receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall be deemed to be cash solely for purposes of this Section 10.16(a)(i); and;
(3ii) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be,), at its option except as described below:
(iA) (x) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank IndebtednessSenior Indebtedness or any Indebtedness of any non-Guarantor Subsidiary), to prepay, repay or purchase such Bank Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary of the Company within 365 days of such Asset Disposition, (y) at the Company’s election to the investment by the Company or of a such Restricted Subsidiary in assets to replace the assets that were the subject of such Asset Disposition or assets that (as determined in good faith by the Company) are directly related to the business of the Company and the Restricted Subsidiaries existing on the Issue Date, in each case within 365 days from the date of such Asset Disposition Disposition, or (z) a combination of the foregoing purposes within such 365-day period;
(B) to make a pro rata offer to purchase Notes at par (and, to the extent required by the instrument governing such Indebtedness, any other Senior Indebtedness or Indebtedness of a non-Guarantor Subsidiary designated by the Company, at a price no greater than par) plus accrued and unpaid interest, which offer can be made at the Company’s election at any time during the 365-day period set forth in Section 10.16(a)(ii)(A) or within 10 Business Days after such period, the “Application Period”), unless and
(C) to the extent of the balance of such Net Available Cash is otherwise used after application in accordance with clause (iiSections 10.16(a)(ii)(A) and 10.16(a)(ii)(B), for general corporate purposes otherwise permitted under this Indenture; provided, however, that, that in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (aSections 10.16(a)(ii)(A) and 10.16(a)(ii)(B), the Company or such Restricted Subsidiary will shall 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, or
(ii) to . Notwithstanding the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent foregoing provisions of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) abovethis Section 10.16, the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 10.16 except to the extent that the aggregate Net Available Cash from all Asset Dispositions (including any Asset Dispositions made since the Issue Date) which are not applied in accordance with this Section 10.16 exceeds $50.0 million. For the purposes of this Section 10.16, the following is deemed to be cash or Cash Equivalents: the express assumption of Indebtedness (other than any Indebtedness that is by its terms subordinated to the Notes or to any Subordinated Obligation) of the Company or any Restricted Subsidiary and for which the Company or such Restricted Subsidiary has been validly released by all creditors in writing.
(b) In the event of an Asset Disposition that results in an offer to purchase the Notes (and other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary) pursuant to Section 10.16(a)(ii)(B), the Company or such Restricted Subsidiary shall purchase Notes tendered pursuant to an offer by the Company for the Notes (and, to the extent required, other Senior Indebtedness of any non-Guarantor Subsidiary) at a purchase price of 100% of their principal amount (without premium) plus accrued but unpaid interest (or, in respect of such other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary, such lesser price, if any, as may be provided for by the terms of such Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary, as applicable) in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture which shall include, among other things, that the offer shall remain open for 20 Business Days following its commencement. If the aggregate purchase price of Notes (and, to the extent required, any other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary) tendered pursuant to such offer is less than the Net Available Cash allotted to the purchase thereof, the Company shall be entitled to apply the remaining Net Available Cash in accordance with Section 10.16(a)(ii)(A) or (C). The Company shall not be required to make such an offer to purchase Notes (and other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary) pursuant to this Section 10.16 if the Net Available Cash available therefor is less than $50.0 million (which lesser amount shall be carried forward for purposes of determining whether such an offer is required with respect to any subsequent Asset Disposition). The Company shall not be required to make such an offer to purchase Notes (and other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary) pursuant to this Section 10.16 if a third party (including any of the Company’s Restricted Subsidiaries) makes the offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to such an offer by the Company and purchases all Notes validly tendered and not withdrawn under such offer. Upon completion of any such offer by the Company for Notes, the amount of Net Available Cash related to such Asset Disposition shall be reset to zero, and during the pendency of an offer by the Company for Notes being effected in advance of being required to do so by this Indenture, the amount of Net Available Cash the Company is offering to apply in such offer shall be excluded in subsequent calculations of Net Available Cash in respect of subsequent Asset Dispositions. Pending the final application of any Net Available Cash pursuant to Section 10.16(a)(ii), the Company or the applicable Restricted Subsidiary may apply such Net Available Cash temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition Cash Equivalents or Investment Grade Securities.
(or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(ac) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the The Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.1510.16. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.1510.16, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Indenture Section 10.16(c) by virtue of any conflictthereof.
Appears in 1 contract
Sources: Indenture (Terex Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition of any Notes Collateral unless:
(1) the Company or such Restricted SubsidiarySubsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the case may beBoard of Directors, receives consideration (both cash and non cash) equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(2) except to the extent the Company or a Restricted Subsidiary receives Additional Assets in exchange for such Asset Disposition (other than Additional Assets that would not be added to the Notes Collateral as a result of the proviso contained in Section 4.06(a)(3)(i)), at least 75% of the consideration from such Asset Disposition thereof received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets. For purposes cash equivalents; provided, however, that the terms of this clause (2), each of the following Section 4.06(a)(2) shall be deemed not apply to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liabilitySpecified Asset Sale;
(bi) any securities, notes or other obligations to the extent that the Additional Assets received by the Company or any such and its Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary Subsidiaries in such Asset Disposition having an aggregate Fair Market Value qualify as "Additional Assets" pursuant to clause (as determined in good faith by the Board of Directors 1) of the Company)definition thereof, taken together such Additional Assets are concurrently with all other Designated Noncash Consideration received their acquisition added to the Notes Collateral securing the Securities; provided, however, that Additional Assets that qualify as "Additional Assets" pursuant to clause (1)(B) of the definition thereof shall only be added to the Notes Collateral pursuant to this clause (ci) to the extent the terms of the Intercreditor Agreement are amended, modified or terminated to permit the addition of such Additional Assets to the Notes Collateral; and (ii) to the extent that the Additional Assets received by the Company and its Restricted Subsidiaries in such Asset Disposition constitute the Capital Stock of any Person, assets of such Person that qualify as "Additional Assets" pursuant to clause (1) of the definition thereof (excluding Additional Assets that qualify as "Additional Assets" pursuant to clause (1)(B) of the definition thereof unless and until the terms of the Intercreditor Agreement are amended, modified or terminated to permit the addition of such Additional Assets to the Notes Collateral) with a Fair Market Value that is at that time outstanding, not equal to exceed $100.0 million (with or greater than the Fair Market Value of each item the Notes Collateral that is the subject of Designated Noncash Consideration being measured at such Asset Disposition are concurrently with the time received without giving effect acquisition added to subsequent changes in value)the Notes Collateral securing the Securities; and
(34) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is paid directly by the purchaser thereof to the Notes Collateral Agent to be held in trust and applied by the Company (or such Restricted Subsidiary, as the case may be,) at the Company's election either:
(A) to acquire Additional Assets (other than Additional Assets that would not be added to the Notes Collateral pursuant to clause (i) of the following proviso) (or to reimburse the Company for customary out-of-pocket costs incurred by the Company and directly related to such acquisition), which Additional Assets are concurrently with their acquisition added to the Notes Collateral securing the Securities; provided, however, that (i) to the extent that the Additional Assets acquired by the Company and its Restricted Subsidiaries in such Asset Disposition qualify as "Additional Assets" pursuant to clause (1) of the definition thereof, such Additional Assets are concurrently with their acquisition added to the Notes Collateral securing the Securities (provided that Additional Assets that qualify as "Additional Assets" pursuant to clause (1)(B) of the definition thereof shall only be added to the Notes Collateral pursuant to this clause (i) to the extent the terms of the Intercreditor Agreement are amended, modified or terminated to permit the addition of such Additional Assets to the Notes Collateral) and (ii) to the extent that the Additional Assets acquired by the Company and its Restricted Subsidiaries in such Asset Disposition constitute the Capital Stock of any Person, assets of such Person that qualify as "Additional Assets" pursuant to clause (1) of the definition thereof (excluding Additional Assets that qualify as "Additional Assets" pursuant to clause (1)(B) of the definition thereof unless and until the terms of the Intercreditor Agreement are amended, modified or terminated to permit the addition of such Additional Assets to the Notes Collateral) with a Fair Market Value that is equal to or greater than the Net Available Proceeds received by the Company or any of its Restricted SubsidiarySubsidiaries in respect of the Notes Collateral that is the subject of such Asset Disposition are concurrently with the acquisition added to the Notes Collateral securing the Securities, as or
(B) to make an offer to the case may be, elects holders of the Securities (or is required by the terms and if applicable holders of any Bank Indebtedness)Pari Passu Debt) to purchase Securities (and such Pari Passu Debt) pursuant to and subject to the conditions contained in the Indenture, to prepay, repay or purchase such Bank Indebtedness in each case within one year from the later of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, or the “Application Period”), unless to the extent receipt of such Net Available Cash is otherwise used in accordance with clause (ii)Cash; provided, however, that, that in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a)B) above, the Company or such Restricted Subsidiary will shall permanently retire such Indebtedness and will shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 4.06(a), orthe Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this Section 4.06(a), except to the extent that the aggregate Net Available Cash from all Asset Dispositions of Notes Collateral which is not applied in accordance with this Section 4.06(a) exceeds $7.5 million.
(iib) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition (other than an Asset Disposition of Notes Collateral) unless:
(1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition;
(2) except to the extent the Company or a Restricted Subsidiary receives Additional Assets in exchange for such Asset Disposition, at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary electsis in the form of cash or cash equivalents; provided, however, that the terms of this Section 4.06(b)(2) shall not apply to invest in Replacement Assets within the applicable Application Periodany Specified Asset Sale; and
(b3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be):
(A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(B) second, to the extent of the balance of the such Net Available Cash after application in accordance with clause (a) above (such balance, “Excess Proceeds”A), is applied 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 (or to reimburse the Company for customary out-of-pocket costs incurred by the Company or and directly related to such Restricted Subsidiaryacquisition); and
(C) third, as to the case may beextent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), toward to make an offer to the holders of the Securities (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Notes as set forth securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in the next succeeding paragraphSection 4.06(d); provided, however, that pending in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, the final application Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 4.06(b), the Company and the Restricted Subsidiaries shall not be required to apply any such Net Available Cash in accordance with clause (athis Section 4.06(b) or clause (bexcept to the extent that the aggregate Net Available Cash from all Asset Dispositions subject to this Section 4.06(b) abovewhich is not applied in accordance with this paragraph Section 4.06(b) exceeds $7.5 million. Pending application of Net Available Cash pursuant to this Section 4.06, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash may be applied to temporarily reduce revolving credit indebtedness or invested in any manner that is not prohibited by this Indenture. On .
(c) For the 366th day after an Asset Disposition purposes of this Section 4.06, the following are deemed to be cash or cash equivalents:
(1) the assumption of Indebtedness of the Company (other than obligations in respect of Disqualified Stock of the Company) or such earlier date, if any, as any Restricted Subsidiary (other than obligations in respect of Disqualified Stock or Preferred Stock of a Subsidiary Guarantor) and the Board of Directors release of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied from all liability on such Indebtedness in accordance connection with clause such Asset Disposition; and
(3)(a2) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, securities received by the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes andor any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash, to the extent required of cash received in that conversion.
(d) In the event of an Asset Disposition that results in an offer to purchase Securities (and any other Indebtedness of the Company) pursuant to Section (a)(4)(B) or (b)(3)(C) above, the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Indebtedness) the ("Offer") at a purchase price of 100% of their principal amount (or, in the event such other Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof) without premium, plus accrued but unpaid interest (or, in respect of such other Indebtedness of the Company, such lesser price, if any, as may be provided for by the terms of other Senior such Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures (including prorating in the event of oversubscription) set forth herein or the agreements governing the Pari Passu Notesin Section 4.06(e). In each case, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that if the aggregate amount purchase price of Notes and Pari Passu Notes so validly the securities tendered and not properly withdrawn pursuant to an Asset Disposition the Offer is less than exceeds the Excess ProceedsNet Available Cash allotted to their purchase, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes securities to be purchased on a pro rata basis on but in round denominations, which in the basis case of the aggregate Securities will be denominations of $1,000 principal amount or multiples thereof. If any Net Available Cash remains after the completion of any such tendered Notes and Pari Passu Notesoffer to purchase, the Company may use such Net Available Cash for any purpose not otherwise prohibited by the Indenture. Upon completion of any such Asset Disposition Offer, Net Available Cash will be deemed to be reduced by the aggregate amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencementsuch Offer.
(1) Promptly, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days and in any event within 10 days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required becomes obligated to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of make an Asset Disposition Offer, the Company shall send, by first class mail, a notice deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(d) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at its registered addressthe applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain or incorporate by reference such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to enable such Holder to tender Notes Securities pursuant to the Asset Disposition Offer. Any Asset Disposition , together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall be made deliver to all Holders. The notice, which shall govern the terms Trustee an Officers' Certificate as to (A) the amount of the Asset Disposition Offer (the "Offer Amount"), including information as to any other Senior Indebtedness included in the Offer, shall state:
(1B) that the allocation of the Net Available Cash from the Asset Disposition Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a), (b) and (d). On or prior to the last day prior to 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) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section; provided, however, that such amount shall be reduced by the amount of any Trust Moneys held at such time by the Trustee (net of any amounts payable to the Trustee pursuant to Section 7.07) that the Company instructs the Trustee to use for payment in accordance with this Section. If the Offer includes other Senior Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;4.06.
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note Security purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the NoteSecurity, with the an appropriate form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes duly completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent Company at the address specified in the notice at least three days before not later than the Asset Disposition close of business on the third Business Days prior to the Purchase Date;
(7) that . Holders shall be entitled to withdraw their election if the Company, the Depository Trustee or the Paying Agent, as the case may be, receives, Company receives not later than the second close of business day on the third Business Day prior to the Asset Disposition Purchase Date, a notice telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note Security purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) that . Holders whose Notes were Securities are purchased only in part shall be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer); andSecurities surrendered.
(104) all other procedures, if any, determined by At the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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, time the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver delivers Securities to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were which are to be accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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.Co
Appears in 1 contract
Sources: Indenture (Jacuzzi Brands Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company Borrower will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1i) the Company Borrower or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cashincluding 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 not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) fair market value of the shares and assets subject to such Asset Disposition;, as such fair market value may be determined (and shall be determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $10.0 million) in good faith by the Board of Directors, whose determination shall be conclusive (including as to the value of all noncash consideration),
(2ii) in the case of any Asset Disposition (or series of related Asset Dispositions) at least 75% of the consideration from such therefor (excluding, in the case of an Asset Disposition (or series of related Asset Dispositions) of assets, any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, that are not Indebtedness) received by the Company Borrower or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s cash, or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition Assets having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)fair market value, taken together with all other Designated Noncash Consideration Assets received in consideration for Asset Dispositions pursuant to this clause (cb) that is are at that the time outstanding, not to exceed the greater of (x) 5% of Consolidated Tangible Assets and (y) $100.0 35.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value)of receipt of such Designated Noncash Assets; and
(3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company or such Restricted Subsidiary, as the case may be,
Borrower (i) to the extent the Company or any Restricted Subsidiary, as the case may be) as follows:
(A) first, either (x) to the extent the Borrower elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company Borrower (other than Subordinated Obligations) ranking pari passu with the Loan or Indebtedness of a Restricted Subsidiary (in each case other than Indebtedness owed to the Borrower or a Restricted Subsidiary) within 365 days after the date of such Asset Disposition, or (y) to the extent the Borrower 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 Borrower or another Restricted Subsidiary) within 365 days from the date of such Asset Disposition Disposition;
(such periodB) second, the “Application Period”), unless to the extent of the balance of such Net Available Cash is otherwise used after application in accordance with clause (iiA) above (such balance, the "Excess Proceeds"), to make an offer to repay the Loan and (to the extent the Borrower or such Restricted Subsidiary elects, or is required by the terms thereof) to purchase, redeem or repay any other Indebtedness ranking pari passu in right of payment with the Loan ("Pari Passu Indebtedness"), pursuant and subject to the conditions of this Agreement 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 Agreement) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations); provided, however, that, that in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a)A)(x) or (B) above, the Company Borrower 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 6.8, or
(ii) the Borrower and the Restricted Subsidiaries shall not be required to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of apply any such Net Available Cash in accordance with clause (a) or clause (b) above, this Section 6.8 except to the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such extent that the aggregate Net Available Cash in any manner from all Asset Dispositions that is not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with this Section 6.8 exceeds $15.0 million. If the aggregate principal amount of the Loan and Pari Passu Indebtedness validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to clause (3)(aB) above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between the Loan and such Pari Passu Indebtedness, with the portion of the Excess Proceeds payable in respect of the Loan to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding principal amount of the Loan and the denominator of which is the sum of the outstanding principal amount of the Loan and the outstanding principal amount of the relevant Pari Passu Indebtedness, and (y) the aggregate principal amount of Loan validly tendered and not withdrawn. For the purposes of clause (ii) of the first paragraph of this Section 4.15)6.8, if the following are deemed to be cash: (1) Temporary Cash Investments and Cash Equivalents, (2) the assumption of Indebtedness of the Borrower (other than Disqualified Stock of the Borrower) or any Restricted Subsidiary and the release of the Borrower or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Borrower and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (4) securities received by the Borrower or any Restricted Subsidiary from the transferee that are converted by the Borrower or such Restricted Subsidiary into cash within 180 days after the consummation of such Asset Disposition and (5) consideration consisting of outstanding Indebtedness of the Borrower or a Restricted Subsidiary which is then retired.
(b) In the event of an Asset Disposition that requires the repayment of the Loan pursuant to clause (iii)(B) of the first paragraph of this Section 6.8, the Borrower will be required to repay the Loan pursuant to an offer by the Borrower to repay the Loan (the "Offer") at a purchase price of 100% of the Accreted Value thereof on the date of repayment plus, in each case, accrued and unpaid interest in accordance with the procedures (including prorating in the event of oversubscription) set forth in paragraph (c) of this Section 6.8. If the aggregate amount of Excess Proceeds exceeds $50.0 millionthe Loan and other pari passu Indebtedness tendered pursuant to the Offer is less than the Net Available Cash allotted to the repayment of the Loan and other Pari Passu Indebtedness tendered, the Company remaining Net Available Cash will be available to repay the Loan in accordance with clause (iii)(B) or (iii)(C) of the first paragraph of this Section 6.8. The Borrower shall not be required to make an offer Offer to repay the Loan pursuant to this Section 6.8 if the Net Available Cash available therefor (“after application of the proceeds as provided in clause (iii)(A) of the first paragraph of this Section 6.8) is less than $15.0 million for any particular Asset Disposition Offer”) to all Holders (which lesser amounts shall be carried forward for purposes of Notes and, determining whether an Offer is required with respect to the extent required by Net Available Cash from any subsequent Asset Disposition).
(c) The Borrower will, not later than 45 days after the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company Borrower becomes obligated to make an offer Offer pursuant to purchase such Senior Indebtedness with this Section 6.8, mail a notice to the proceeds from any Lenders stating: (1) that an Asset Disposition that requires the repayment of a portion of the Loan has occurred and that the Lenders have the right (“Pari Passu Notes”subject to the prorating described below) to purchase require the maximum principal amount of Notes and any such Pari Passu Notes Borrower to which the Asset Disposition Offer applies that may be purchased out repay a portion of the Excess Proceeds, Loan at an offer a purchase price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes Accreted Value thereof, plus accrued and unpaid interest interest, if any, to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount purchase (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”Section 3.07). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
; (2) the circumstances and relevant facts and financial information regarding such Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
Disposition; (3) that any Notes not tendered or accepted for payment the repayment date (which shall continue to accrete or accrue interest;
be no earlier than 30 days nor later than 60 days from the date such notice is mailed); (4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, instructions determined by the CompanyBorrower, consistent with this IndentureSection 6.8, that a Holder the Lenders must follow in order to have its Notes purchased in the Asset Disposition Offer. If Loan repaid; and (5) 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 who tender Notes pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 PeriodOffer.
(d) 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company Borrower will comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase repayment of Notes the Loan pursuant to this Section 4.156.8. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.156.8, the Company Borrower will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture Section 6.8 by virtue of any conflictthereof.
Appears in 1 contract
Sources: Loan Agreement (Sirva Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1i) the Company or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cashincluding by way of relief from, or by any other person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to not less than the Fair Market Value fair market value (such ▇▇▇▇ ▇▇▇▇▇▇ Value fair market value to be determined on the date of contractually agreeing to such Asset Disposition) ), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition;
(2ii) at least (i) 75% for sales of assets that do not constitute Charged Property or (ii) 100% for sales of assets that constitute Charged Property, of the consideration from for such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents or Replacement Assets. For purposes Equivalents; and provided that, with respect to sales of this clause assets that do not constitute Charged Property, the amount of
(2), each A) the greater of the following shall be deemed to be cash:
(a) principal amount and the carrying value of any liabilities (as shown reflected on the face Company’s most recent consolidated balance sheet or in the footnotes thereto or, if Incurred or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Company’s consolidated balance sheet or in the footnotes thereto if such incurrence or increase had taken place on or prior to the date of such balance sheet, as determined by the Company) of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are by their terms subordinated to the Facilities, that are (1) assumed by the transferee of any such assets (or a third party in connection with such transfer) pursuant to a customary novation written agreement that which releases or indemnifies the Company from such liabilities or such Restricted Subsidiary from further liability;(2) otherwise cancelled or terminated in connection with the transaction; 211 Project Meria: Senior Facilties Agreement
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition[Reserved]; and
(cC) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board [Reserved], shall each be deemed to be Cash Equivalents for purposes of Directors of the Company), taken together with all this provision and for no other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value)purpose; and
(3iii) an amount equal to one hundred (100% ) per cent. of the Net Available Cash from such Asset DispositionDisposition is applied:
(aA) firstif the assets sold pursuant to such Asset Disposition constitute Charged Property, the Company shall be required to apply (I) one hundred (100) per cent. of the Net Available Cash from such Asset Disposition to promptly repay the Facility B2 if, pro forma for such disposition, the Proportionate Net Leverage Ratio is greater than 3.00:1.00; (II) fifty (50) per cent. of the Net Available Cash from such Asset Disposition to repay the Facility B2 if, pro forma for such disposition, the Proportionate Net Leverage Ratio is equal to or less than 3.00:1.00 but greater than 2.50:1.00 and (III); zero (0) per cent. of the Net Available Cash from such Asset Disposition to repay the Facility B2 if, pro forma for such disposition, the Proportionate Net Leverage Ratio is equal to or less than 2.50:1.00. For the avoidance of doubt, any proceeds of such Asset Disposition not required to be applied pursuant to this sub-paragraph (iii)(A) shall not constitute Excess Proceeds and may be used for any purposes not prohibited under this Agreement; and
(B) if the assets sold pursuant to such Asset Disposition do not constitute Charged Property, an amount equal to one hundred (100) per cent. of the Net Available Cash from such Asset Disposition is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of any Debt other than Debt owed to the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition Subordinated Debt and/or to invest in or commit to invest in Additional Assets, provided that:
(such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, 1) in connection with any prepayment, repayment or purchase of any such Indebtedness Debt pursuant to this clause sub-paragraph (a)B) above, the Company or such Restricted Subsidiary will retire such Indebtedness Debt and will cause the related commitment (if any) (other than in the case of any asset-based credit facility) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchasedpurchased provided further that if the Company elects that any repayment of any revolving credit facility shall constitute an application of Net Available Cash under this paragraph (B) (the amount so elected to be applied being, orthe "RCF Election Amount"), such repayment shall be accompanied by a permanent cancellation of commitments under such revolving credit facility in an amount at least equal to such RCF Election Amount;
(ii2) to in the extent the Company case of sub-paragraph (B) above, a binding commitment or letter of intent entered into not later than such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance 365th day shall be treated as a permitted application of the Net Available Cash after application from the date of such commitment or letter of intent so long as the Company 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 the later of such 365th day and one hundred and eighty (180) days of such commitment or letter of intent (an "Acceptable Commitment") or, in accordance with the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Available Cash is applied in connection therewith, the Company enters into another Acceptable Commitment (aa "Second Commitment") above within one hundred and eighty (180) days of such balancecancellation 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”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that and 212 Project Meria: Senior Facilties Agreement
(3) pending the final application of the amount of any such Net Available Cash in accordance with clause sub-paragraph (aB) above or clause (b) aboveotherwise in accordance with this Section 4, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness Debt or otherwise invest use such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition Agreement.
(or such earlier date, if any, as the Board b) The amount of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in accordance with clause paragraph (3)(aa) above will be deemed to constitute "Excess Proceeds" under this Agreement; provided that, to the extent the Company has elected to prepay, repay or purchase any amount of Debt pursuant to sub-paragraph (a)(iii)(B) above (other than Obligations under this Agreement) at a price of no less than one hundred (100) per cent. of the first paragraph principal amount thereof, and has extended such offer to the Lenders on at least a pro rata basis pursuant to Clause 8.5 (Application of this Section 4.15prepayments), if to the aggregate amount extent the creditors in respect of Excess Proceeds exceeds $50.0 millionsuch Debt (including the Lenders) elect not to tender their Debt for such prepayment, repayment or purchase, the Company will be required deemed to have applied an amount of Net Available Cash equal to such amount not tendered under this paragraph (b), and such amount shall not increase the amount of Excess Proceeds.
(c) In the case of sub-paragraph (a)(iii)(B) above, on the 366th day (or such longer period permitted by paragraph (a) above) after the later of an Asset Disposition or the receipt of such Net Available Cash, , the Company will within ten (10) Business Days make an offer (“an "Asset Disposition Offer”") to all Holders of Notes andeach Lender under the Facility, to the extent and if required or permitted by the terms of other Senior Indebtednessany Debt, to all the holders of other Senior Indebtedness such Debt, to prepay the outstanding with similar provisions requiring Facility (and only to the Company to make an offer to purchase extent the Facility is outstanding) held by any such Senior Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) Lender at par, and to purchase the maximum aggregate principal amount (or accreted value, as applicable) of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies Debt that may be purchased out of the Excess Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount of offer price required by the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchaseterms thereof, in accordance with the procedures set forth herein or in the agreements agreement(s) governing such Debt.
(d) The Company may satisfy the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of foregoing obligations with respect to any Note shall not be less than $2,000 in principal amount) or, Net Available Cash from an Asset Disposition in the case of Pari Passu Notessub-paragraph (a)(iii)(B) above, by making an Asset Disposition Offer with respect to such Net Available Cash prior to the expiration of the relevant three hundred and sixty-five (365) days (or such longer period provided above) with respect to all or part of the Net Available Cash (the "Advance Portion") in such other integral multiples as may be specified advance of being required to do so by this Agreement (an "Advance Offer").
(e) Other than in the agreements governing case of sub-paragraph (a)(iii)(A) above, Clause 8.5 (Application of prepayments) shall apply to any prepayment of the Pari Passu NotesFacility.
(f) If the aggregate principal amount (or accreted value, if applicable) of the Facility or other Debt elected to be repaid pursuant to sub-paragraph (a)(iii)(A) above, as the case may be, surrendered by such holders thereof exceeds the amount offered in the Asset Disposition Offer (or in the case of an Advance Offer, the Advance Portion), the Company shall repay the Facility and such Debt, as the case may be, on a pro rata basis based on the aggregate principal amount (or accreted value, if applicable) of the Facility offered to be repaid or such Debt, as the case may be, tendered with adjustments as necessary so that no Facility to be repaid or Debt, as the case may be, will be repurchased in part in an unauthorized denomination. Upon completion of any such Asset Disposition Offer (or Advance Offer), the amount of Excess Proceeds that resulted in the requirement to make an Asset Disposition Offer shall be reset to zero (0) (regardless of whether there are any remaining Excess Proceeds upon such completion). Upon consummation or expiration of any Asset Disposition Offer, any remaining Net Available Cash shall not be deemed Excess Proceeds and the Company may use such Net Available Cash for any purpose permitted by this Agreement. 213 Project Meria: Senior Facilties Agreement
(g) To the extent that the aggregate amount (or accreted value, if applicable) of Notes outstanding Facility prepaid and Pari Passu Notes so validly Debt, as the case may be, tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceedsamount offered in the Asset Disposition Offer (or, in the case of an Advance Offer, the Advance Portion), the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 and, in additionAdvance Offer, 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 Advance Portion) for any case purposes 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 Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations otherwise prohibited under this Indenture by virtue of any conflictAgreement.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cashincluding 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 not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;,
(2) at least 75% of the consideration from such Asset Disposition thereof received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash cash, assets useful in a Permitted Business, or Cash Equivalents or Replacement Assets. For purposes the assumption by the purchaser of this clause (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by their terms subordinated to the transferee Notes) as a result of which the Company and the Restricted Subsidiaries are no longer obligated with respect to those liabilities; provided that the amount of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition shall be deemed to be cash for the purposes of this provision (but for no other purpose) so long as such amount, taken together with the Fair Market Value when received of all other Designated Noncash Consideration that is at that time outstanding (i.e., that has not been sold for or otherwise converted into cash or Permitted Securities), does not exceed the greater of (i) $150,000,000 and (ii) 6% of Consolidated Tangible Assets as of the last day of the most recent fiscal quarter; provided, further, that (A) securities or other assets received by the Company or any Restricted Subsidiary from such the transferee that are converted by the Company or such Restricted Subsidiary into cash (within 180 days after the closing of such Asset Disposition shall be considered to be cash to the extent of the cash received in that conversion; and (B) within 180 days any cash consideration paid to the Company or the Restricted Subsidiary in connection with the Asset Disposition that is held in escrow or on deposit to support indemnification, adjustment of the closing purchase price or similar obligations in respect of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)shall be considered to be cash, taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset DispositionDisposition is applied by the Company (or such Restricted Subsidiary, as the case may be) within 365 days after the later of the date of such Asset Disposition and the receipt of such Net Available Cash:
(aA) firstto prepay, repay, purchase, repurchase, redeem, retire, defease or otherwise acquire for value Secured Indebtedness of the Company or a Subsidiary Guarantor (other than any Disqualified Stock or Subordinated Obligations) or Indebtedness of a Restricted Subsidiary that is applied not a Subsidiary Guarantor, in each case other than Indebtedness owed to the Company or an Affiliate of the Company;
(B) 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); provided, that a binding commitment to apply Net Available Cash in accordance with this clause (B) shall be treated as an application of such Net Available Cash from the date of such commitment if (i) such reinvestment is consummated within 180 days at the end of such 365 day period referred to in this clause (3) and (ii) if such reinvestment is not consummated within the period set forth in subclause (i) or such binding commitment is terminated, the Net Available Cash shall constitute available Net Available Cash; or
(C) (i) to redeem the Notes of either series or make open market purchases thereof at a price not less than 100% of the principal amount thereof or (ii) to make an Asset Disposition Offer to purchase Notes of such series pursuant to and subject to the conditions set forth in Section 4.10(b); provided, however, that if the Company elects (or is required by the terms of any Pari Passu Indebtedness), such Asset Disposition Offer may be made ratably (determined based upon the respective principal amounts of the Notes of such series and such Pari Passu Indebtedness being purchased or repaid) to purchase the Notes of such series and to purchase or otherwise repay such Pari Passu Indebtedness; provided that pending final application of any such Net Available Cash in accordance with clause (3)(A), (B) or (C) above, the Company and the Restricted Subsidiaries may temporarily reduce revolving Indebtedness outstanding under the Existing Credit Agreement or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. To the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) above, the Company or such Restricted Subsidiary, as the case may be,
, may use such balance for any general corporate purpose not prohibited by the terms of this Indenture. In connection with any prepayment, repayment, purchase, repurchase, redemption, retirement, defeasance or other acquisition for value of Indebtedness pursuant to clause (iA) to the extent or (C) above, the Company or any such Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), 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 repaid, purchased, or
(ii) to repurchased, redeemed, retired, defeased or otherwise acquired for value. Notwithstanding the extent foregoing provisions of this Section 4.10, the Company or such and the Restricted Subsidiary elects, Subsidiaries will not be required to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of apply any such Net Available Cash in accordance with clause (a) or clause (b) above, this covenant except to the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such extent that the aggregate Net Available Cash in any manner from all Asset Dispositions that is not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds covenant exceeds $50.0 million100,000,000.
(b) In the event of an Asset Disposition that requires the purchase of Notes of either series pursuant to Section 4.10(a)(3)(C), the Company will be required required
(i) to make purchase Notes of such series tendered pursuant to an offer by the Company for the Notes of such series (the “Asset Disposition Offer”) at a purchase price of 100% of their principal amount plus accrued and unpaid interest thereon to all the date of purchase (subject to the right of Holders of Notes record on the relevant date to receive interest due on the relevant Interest Payment Date) in accordance with the procedures, including prorating in the event of oversubscription, set forth in this Indenture, and,
(ii) to purchase or otherwise repay Pari Passu Indebtedness of the Company on the terms and to the extent required by contemplated thereby at the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring purchase price set forth in the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any Asset Disposition relevant documentation (“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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus including accrued and unpaid interest to the date of purchaseacquisition, in accordance with the procedures set forth herein or “purchase price”), provided that to the agreements governing extent the purchase price of any such Pari Passu Notes, as applicable, in each case in integral multiples Indebtedness exceeds 100% of $1,000 in the principal amount (provided that thereof, plus accrued and unpaid interest thereon to the unpurchased portion date of any Note acquisition, the Company shall not be less than $2,000 in principal amount) oruse any Net Available Cash to pay such purchase price, in except as permitted by the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notesnext sentence. To the extent that If the aggregate amount purchase price of Notes of either series and Pari Passu Notes so validly Indebtedness tendered and not properly withdrawn pursuant to an the Asset Disposition Offer is less than the Excess ProceedsNet Available Cash allotted to the purchase of the Notes of such series and Pari Passu Indebtedness, the Company may use will apply the remaining Net Available Cash for any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in purpose not prohibited by the terms of this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and The Company will not properly withdrawn pursuant be required to make an Asset Disposition Offer exceeds the amount for Notes of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes either series and Pari Passu NotesIndebtedness pursuant to this Section 4.10 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 4.10(a)(3)(A) and (B)) is less than $100,000,000 for any particular Asset Disposition (which lesser amount will be carried forward for purposes of determining whether an Asset Disposition Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon completion consummation of such any Asset Disposition Offer, the amount Net Available Cash in respect of Excess Proceeds any Asset Disposition(s) shall be reset at reduced to zero. Each Asset Disposition Offer will remain open for a period of .
(c) (i) Promptly, and in any event within 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required becomes obligated to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of make an Asset Disposition Offer, the Company shall send, by first class mail, a notice be obligated to deliver to the Trustee and send or, at the request of the Company have the Trustee send (such notice to be provided to the Trustee at least five Business Days before the Trustee is requested to send such notice unless a shorter period shall be satisfactory to the Trustee), in the name and on behalf of the Company, by first-class mail to each Holder, or in the case of Global Notes, send in accordance with the Applicable Procedures of the Depositary, a written notice stating that the Holder may elect to have its Notes of either series purchased by the Company either in whole or in part (subject to prorating as hereinafter described in the event the Asset Disposition Offer is oversubscribed) in minimum denominations of $2,000 of principal amount or any greater integral multiple of $1,000 thereof, at its registered addressthe applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the “Purchase Date”) and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum shall include (1) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports); provided that in lieu of providing the reports specified in this subclause (1), the Company may, at its option, notify the holders that such reports are available to them in electronic format through the SEC’s ▇▇▇▇▇ system, (2) a description of material developments in the Company’s business subsequent to the date of the latest of such reports, and (3) if material, appropriate pro forma financial information) and all instructions and materials necessary to 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, together with the form entitled “Option of Holder address referred to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
clause (7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchasediii);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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 (Qorvo, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. The Company will Borrower 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 Company Borrower or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cash) at the time of such Asset Disposition at least equal to not less than the Fair Market Value fair market value (such ▇▇▇▇ ▇▇▇▇▇▇ Value including as to be determined on the date value of contractually agreeing to such Asset Dispositionall non-cash consideration) of the shares and assets subject to such Asset Disposition, as determined in good faith by the Board of Directors, if the fair market value is equal to or exceeds $2.5 million, or by an Officer, if the fair market value is less than $2.5 million;
(2) at least 75% of the consideration from such Asset Disposition thereof received by the Company Borrower or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liabilitycash equivalents;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company Borrower (or such Restricted Subsidiary, as the case may be,) to the extent and as set forth in Section 2.11 hereunder. For the purposes of this Section 4.06, the following are deemed to be cash or cash equivalents:
(i) to the extent the Company assumption or discharge of Indebtedness of Borrower (other than obligations in respect of Disqualified Stock of Borrower) or any Restricted Subsidiary, as the case may be, elects Subsidiary (other than obligations in respect of Disqualified Stock or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or Preferred Stock of a Restricted Subsidiary within 365 days from Guarantor) and the date release of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company Borrower or such Restricted Subsidiary will retire from all liability on such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, orconnection with such Asset Disposition;
(ii) to securities received by Borrower or any Restricted Subsidiary from the extent the Company transferee that are converted within 90 days by Borrower or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) secondinto cash, to the extent of the balance of the Net Available Cash after application cash received in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer)conversion; and
(10iii) any Designated Non-cash Consideration received by Borrower or any Restricted Subsidiary in an Asset Disposition having an aggregate fair market value, taken together with all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes Designated Non-cash Consideration received pursuant to this Section 4.15. To clause (iii) (unless such Designated Non-cash Consideration has been converted into cash, which shall be treated after such conversion as Net Available Cash), not to exceed 2.5% of Total Assets at the extent that time of the provisions receipt of any securities laws or regulations conflict with provisions of this Section 4.15, 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 conflictsuch Designated Non-cash Consideration.
Appears in 1 contract
Sources: Loan and Security Agreement (Commercial Vehicle Group, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cash) at the time of such Asset Disposition at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value including as to be determined on the date value of contractually agreeing to such Asset Disposition) all non-cash consideration), of the shares and assets subject to such Asset Disposition;; and
(2) at least 75% of the consideration from such Asset Disposition thereof received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or cash, Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;.
(b) any securities, notes or other obligations received by Within 365 days after the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent receipt of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a)Cash, the Company or such Restricted Subsidiary will may, at its option, apply such Net Available Cash:
(1) to repay (w) Credit Facility Indebtedness, (x) any Indebtedness secured by a Lien on the assets sold, (y) any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor but only to the extent the aggregate amount of Net Available Cash so applied is received from Asset Dispositions by such Restricted Subsidiary or (z) any other Senior Indebtedness of the Company or a Subsidiary Guarantor; provided, however, that to the extent the Company or such Restricted Subsidiary repays any such other Senior Indebtedness, the Company shall equally and ratably reduce the principal amount of Securities outstanding, through open-market purchases or through redemption, or shall offer (in accordance with the procedures set forth in Section 4.06(b)) to all Holders to purchase their Securities at 100% of the principal amount thereof, plus accrued but unpaid interest, if any, thereon up to a principal amount which, if the offer were accepted, would result in such reduction;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Related Business; or
(3) to acquire other long-term assets that are used or useful in a Related Business (and current assets incidental thereto) or to make capital expenditures with respect to long-term assets; provided, however, that in connection with any repayment of Indebtedness pursuant to clause (1) above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and will shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaidrepaid. In Section 4.06(b)(2) and (b)(3), repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent a binding commitment shall be treated as a permitted application of the balance of the Net Available Cash after application in accordance with (a) above (from the date of such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraphcommitment; provided, however, that pending the final application of any Company or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Available Cash in accordance with clause (a) or clause (b) above, the Company shall be applied to satisfy such commitment within 180 days of such binding commitment and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indentureis actually so applied within such 180-day period. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Any Net Available Cash will from Asset Dispositions that are not be applied or invested as provided in accordance with clause (3)(aSections 4.06(b)(1)-(b)(3) of the first paragraph of this Section 4.15), if shall constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $50.0 15.0 million, the Company will be required to shall make an offer to Holders (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to and all holders of other Senior Indebtedness outstanding of the Company, the Co-Issuer or of a Subsidiary Guarantor designated by the Company) containing provisions similar to those set forth in this Indenture with similar provisions requiring the Company respect to make an offer offers to purchase such Senior Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) of sales of assets to purchase the maximum principal amount of Notes Securities and any such Pari Passu Notes to which the Asset Disposition Offer applies other pari passu Indebtedness that may be purchased out of the Excess Proceeds. Pending application of Net Available Cash pursuant to this Section 4.06, such Net Available Cash shall be held in cash, invested in Cash Equivalents or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06, the following are deemed to be cash or Cash Equivalents:
(1) the assumption or discharge of Indebtedness of the Company (other than obligations in respect of Disqualified Stock of the Company) or any Restricted Subsidiary (other than obligations in respect of Disqualified Stock or Preferred Stock of a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness 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 within 180 days of the consummation of the Asset Disposition, to the extent of the cash received in such conversion; and
(3) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (3) that is at an offer price in cash in that time outstanding, not to exceed an amount equal to $10.0 million at the time of the receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(c) In the event of an Asset Disposition that requires the Company to make an offer to Holders of Securities pursuant to Section 4.06(b), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Indebtedness of the Company or of a Subsidiary Guarantor permitted to be included in such offer) at a purchase price of 100% of their principal amount (or, in the event such other Senior Indebtedness was issued with significant original issue discount, 100% of the principal amount of the Notes and Pari Passu Notes accreted value thereof), without premium, plus accrued and but unpaid interest to (or, in respect of such other Senior Indebtedness, such lesser price, if any, as may be provided for by the date terms of purchase, such other Senior Indebtedness) in accordance with the procedures (including prorating in the event of oversubscription) set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount purchase price of Notes and Pari Passu Notes validly the securities tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess ProceedsNet Available Cash allotted to their purchase, the Trustee Company shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes securities to be purchased on a pro rata basis on but in round denominations, which in the basis case of the aggregate Securities shall be minimum denominations of $2,000 principal amount or any greater integral multiple of $1,000. The Company shall not be required to make such tendered Notes an offer to purchase Securities (and Pari Passu Notesother Senior Indebtedness of the Company or of a Subsidiary Guarantor) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except an offer to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold Net Available Cash shall be deemed to be Net Available Cash for purposes reduced by the aggregate amount of this Section 4.15. such offer.
(d) The Company will shall comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes Securities pursuant to this Section 4.154.06. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.154.06, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Indenture Section 4.06 by virtue of any conflictits compliance with such securities laws or regulations.
Appears in 1 contract
Sources: Indenture (EnergySolutions, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition following the Issue Date unless:
(1i) the Company or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Fair Market Value to be determined on as of the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;; and
(2ii) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents Equivalents. The Company shall determine the Fair Market Value of any consideration from such Asset Disposition that is not cash or Replacement Assets. Cash Equivalents.
(b) For the purposes of this clause (2)Section 3.7, each of the following shall be are deemed to be cash:
: (ax) any the assumption of Indebtedness or other liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company (other than Disqualified Stock or Junior Indebtedness) or Indebtedness or other liabilities of any Restricted Subsidiary (other than contingent liabilities Disqualified Stock or Junior Indebtedness) and Subordinated Obligations) that are assumed by the transferee release of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
all liability on such Indebtedness or liabilities in connection with such Asset Disposition, (by) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such the transferee that are converted within 180 days by the Company or such Restricted Subsidiary into cash and (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(cz) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith Good Faith by the Board of Directors of the Company), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (cz) that is at that time outstanding, not to exceed $100.0 50.0 million at the time of the receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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 (McClatchy Co)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
unless (1i) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cashincluding 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 not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
, (2ii) except in the case of a Permitted Asset Swap, at least 75% of the consideration from such Asset Disposition thereof received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause and (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be,
) (i1) first, to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank ----- Indebtedness), to prepay, repay repay, purchase, repurchase, redeem, retire, defease or purchase such Bank otherwise acquire for value Senior Indebtedness of the Company or Indebtedness of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company (other than an Affiliate of Chase Capital Partners which is a lender in the ordinary course of business) and other than obligations in respect of Disqualified Stock) within 365 days from the date of such Asset Disposition 180 days
(such period, the “Application Period”), unless a) except to the extent such that the aggregate Net Available Cash from all Asset Dispositions that is otherwise used not applied in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase this Section 4.06(a) exceeds $7.5 million. For the purposes of any such Indebtedness pursuant to this clause (a)Section 4.06, the following are deemed to be cash: (A) the assumption of Indebtedness of the Company (other than obligations in respect of Disqualified Stock of the Company) or such any Restricted Subsidiary will retire such Indebtedness (other than obligations in respect of Disqualified Stock and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Preferred Stock of a Restricted Subsidiary elects, to invest in Replacement Assets within that is not a Note Guarantor) and the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors release of the Company or such Restricted Subsidiary determines from all liability on such Indebtedness in connection with such Asset Disposition and (B) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities pursuant to Section 4.06(a)(iii)(3), the Company shall be required (i) to purchase Securities tendered pursuant to an offer by the Company for the Securities (the "Offer") at a purchase price of 100% of their principal amount plus accrued and unpaid interest and liquidated damages thereon, 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) in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 4.06(c) and (ii) to purchase other Senior Subordinated Indebtedness of the Company on the terms and to the extent contemplated thereby (provided that in no event shall the Company offer to purchase such other Senior Subordinated Indebtedness of the Company at a purchase price in excess of 100% of its principal amount (without premium), plus accrued and unpaid interest thereon, unless an equal premium is offered to Holders in the Offer). If the aggregate purchase price of Securities (and other Senior Subordinated Indebtedness) tendered pursuant to the Offer is less than the Net Available Cash will not be applied allotted to the purchase of the Securities (and other Senior Subordinated Indebtedness), the Company shall apply the remaining Net Available Cash in accordance with clause (3)(a) of the first paragraph of this Section 4.154.06(a)(iii)(4), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the . The Company will shall not be required to make an offer Offer for Securities (“and other Senior Subordinated Indebtedness) pursuant to this Section 4.06 if the Net Available Cash available therefor (after application of the proceeds as provided in clauses (1) and (2) of Section 4.06(a)(iii)) is less than $5.0 million for any particular Asset Disposition Offer”) to all Holders (which lesser amount shall be carried forward for purposes of Notes and, determining whether an Offer is required with respect to the extent required by the terms of other Senior IndebtednessNet Available Cash from any subsequent Asset Disposition).
(i) Promptly, to all holders of other Senior Indebtedness outstanding with similar provisions requiring and in any event within 15 days after the Company becomes obligated to make an offer Offer, the Company shall be obligated to purchase such Senior 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest deliver to the date of purchaseTrustee 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 accordance with whole or in part (subject to prorating as hereinafter described in the procedures set forth herein or event the agreements governing the Pari Passu Notes, as applicable, in each case Offer is oversubscribed) in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in at the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, by first class mail, a notice to the Trustee and to each Holder at its registered addressprice. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum shall include (1) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (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 enable such Holder to tender Notes Securities 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, together with the address referred to in clause (iii).
(ii) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided above, the Company shall state:
deliver to the Trustee an Officers' Certificate as to (1) that the amount of the Offer (the "Offer Amount"), (2) the allocation of the Net Available Cash from the Asset Disposition Dispositions pursuant to which such Offer is being made pursuant to this Section 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered the compliance of such allocation with the provisions of Section 4.06(a). On such date, the Company shall also irrevocably deposit with the Trustee or accepted with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust) an amount equal to the Offer Amount to be invested in Temporary Cash Investments (which Temporary Cash Investments will be made only pursuant to written instructions of an officer of the Company) and to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall continue deliver to accrete the Trustee for cancelation the Securities or accrue interest;portions thereof that have been properly tendered to and are to be accepted by the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the Offer Amount delivered by the Company to the Trustee is greater than the purchase price of the Securities (and other Senior Subordinated Indebtedness) tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(4iii) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note Security purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the NoteSecurity, with an appropriate form duly completed (which form shall include certain information concerning the form entitled “Option of Holder to Elect Purchase” on and the reverse of the Notes completed, or transfer by book-entry transferSecurity), to the Company, a depository, if appointed by the Company, or the Paying Agent Company at the address specified in the notice at least three days before Business Days prior to the Asset Disposition Purchase Date;
(7) that . Holders shall be entitled to withdraw their election if the Company, the Depository Trustee or the Paying Agent, as the case may be, receives, Company receives not later than the second business day one Business Day prior to the Asset Disposition Purchase Date, a notice facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note Security which was delivered by the Holder delivered for purchase and a duly signed statement that such Holder is withdrawing his election to have such Note Security purchased;
(8) that, if . If at the expiration of the Offer Period the aggregate principal amount of Notes Securities and any other Senior Subordinated Indebtedness included in the Offer surrendered by Holders holders thereof exceeds the Asset Disposition Offer Amount, the Company shall select the Notes Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes Securities and other Senior Subordinated Indebtedness in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) that . Holders whose Notes were Securities are purchased only in part shall will be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer); andSecurities surrendered.
(10iv) all other procedures, if any, determined by At the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in time the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid Company delivers Securities to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will Trustee which are to be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Dateaccepted for purchase, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will also deliver to the Trustee an Officers’ ' Certificate stating that such Notes or portions thereof were Securities are to be accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.15 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu NotesSection. 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company A Security shall be deemed to have sold been accepted for purchase at the properties and assets of time the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15Trustee, and shall comply with directly or through an agent, mails or delivers payment therefor to the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. surrendering Holder.
(v) The Company will shall comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes Securities pursuant to this Section 4.154.06. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.154.06, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Indenture Section 4.06 by virtue of any conflictthereof.
Appears in 1 contract
Sources: Indenture (Commercial Aggregates Transportation & Sales LLC)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1i) the Company Issuer or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cashincluding 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 not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be fair market value, as determined on in good faith by the date Board of contractually agreeing to such Asset Disposition) Directors, of the shares and assets subject to such Asset Disposition;
(2ii) at least 75% of the consideration from such Asset Disposition thereof received by the Company Issuer or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of cash; PROVIDED that the following shall be deemed to be cash:
cash for purposes of this clause (aii): (1) the amount of any liabilities (as shown on the face of the Company’s Issuer's, or such Restricted Subsidiary’s then 's, most recent balance sheet), sheet or in the notes thereto) of the Company Issuer or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligationsthat are by their terms subordinated to the Securities or the Guarantees) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases assets, (2) the Company or such Restricted Subsidiary from further liability;
(b) amount of any securities, notes or other obligations securities received by the Company Issuer or any such Restricted Subsidiary from such transferee that are converted by the Company Issuer or such Restricted Subsidiary into cash (to the extent of the cash received in that conversionreceived) within 180 90 days of following the closing of such Asset Disposition; and
, (c3) the fair market value of any Designated Noncash Consideration Telecommunications Assets received by the Company Issuer in such Asset Disposition and (4) the fair market value of any Permitted Joint Venture Interests received by the Issuer or any Restricted Subsidiary in such Asset Disposition having an Disposition; PROVIDED that the aggregate Fair Market Value fair market value of all Permitted Joint Venture Interests received pursuant to this clause (as determined iv), valued, in each case, at the time of receipt, shall not exceed 10% of Consolidated Net Tangible Assets (for purposes of this Section 4.06(a)(ii), all determinations of fair market value shall be made in good faith by the Board of Directors of and evidenced by an Officers' Certificate delivered to the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in valueTrustee); and
(3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company Issuer (or such Restricted Subsidiary, as the case may be,):
(i1) FIRST, to the extent the Company or any Restricted Subsidiary, as the case may be, Issuer elects (or is required by the terms of any Bank Indebtedness), to prepay, repay repay, redeem, purchase or purchase such otherwise acquire Bank Indebtedness of the Company Issuer or of a Restricted Wholly Owned Subsidiary within 365 180 days from of the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(such period2) SECOND, the “Application Period”), unless to the extent such of the balance of Net Available Cash is otherwise used after application in accordance with clause (ii1) of this Section 4.06(a)(iii), to the extent the Issuer or such Restricted Subsidiary elects to, or enters into a binding agreement to, reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with cash in an amount equal to the amount of Net Available Cash received by, or to be received by, the Issuer or another Restricted Subsidiary) within 180 days of the later of such Asset Disposition or the receipt of such Net Available Cash; providedand
(3) THIRD, howeverto the extent of the balance of such Net Available Cash after application in accordance with clauses (1) and (2) of this Section 4.06(a)(iii), to make an Offer (as defined in clause (b) below) to purchase Securities pursuant to and subject to the conditions set forth in clause (b) below; PROVIDED, HOWEVER, that, if the Issuer elects (or is required by the terms of any other Senior Indebtedness), such Offer may be made ratably to purchase the Securities and other Senior Indebtedness of the Issuer; PROVIDED, HOWEVER, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a1) or (3) of this Section 4.06(a)(iii), the Company Issuer or such Restricted Subsidiary will shall retire such Indebtedness and will 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. Upon completion of any Offer, or
(ii) the amount of Net Available Cash shall be reset at zero and the Issuer shall be entitled to use any remaining proceeds for any corporate purposes to the extent permitted under this Indenture. Notwithstanding the Company or such foregoing provisions of this Section 4.06, the Issuer and the Restricted Subsidiary elects, Subsidiaries shall not be required to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of apply any such Net Available Cash in accordance with clause (athis Section 4.06(a) or clause (b) above, except to the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such extent that the aggregate Net Available Cash in any manner from all Asset Dispositions that is not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with this Section 4.06(a) exceeds $10,000,000.
(b) In the event of an Asset Disposition that requires the purchase of Securities pursuant to clause (3)(aiii)(3) of the first paragraph of this Section 4.154.06(a), the Issuer shall be required to offer to purchase Securities tendered pursuant to an offer by the Issuer for the Securities (an "Offer") at a purchase price of 100% of their principal amount plus accrued and unpaid interest (including additional interest, if any) thereon, to the aggregate amount date of Excess Proceeds exceeds $50.0 million, purchase in accordance with the Company will procedures (including prorating in the event of oversubscription) set forth in Section 4.06(c) and to purchase other Senior Indebtedness on the terms and to the extent contemplated thereby. The Issuer shall not be required to make an offer Offer for Securities (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of and other Senior Indebtedness) pursuant to this Section 4.06 if the Net Available Cash available therefor (after application of the proceeds as provided in clauses (iii)(1) and (iii)(2) of Section 4.06(a)) is less than $10,000,000 for any particular Asset Disposition (which lesser amount shall be carried forward for purposes of determining whether an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(i) Promptly, to all holders of other Senior Indebtedness outstanding with similar provisions requiring and in any event within 10 days after the Company Issuer becomes obligated to make an offer Offer, the Issuer shall be obligated to purchase such Senior 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest deliver to the date of purchaseTrustee 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 Issuer either in accordance with whole or in part (subject to prorating as hereinafter described in the procedures set forth herein or event the agreements governing the Pari Passu Notes, as applicable, in each case Offer is oversubscribed) in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in at the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, by first class mail, a notice to the Trustee and to each Holder at its registered addressprice. 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 Issuer which the Issuer in good faith believes will enable such Holders to make an informed decision (which at a minimum shall include (1) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Issuer, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Issuer 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 Issuer'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 enable such Holder to tender Notes Securities 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, together with the address referred to in clause (iii).
(ii) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided above, the Issuer shall state:
deliver to the Trustee an Officers' Certificate as to (1) that the amount of the Offer (the "Offer Amount"), (2) the allocation of the Net Available Cash from the Asset Disposition Dispositions pursuant to which such Offer is being made pursuant to this Section 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered the compliance of such allocation with the provisions of Section 4.06(a). On such date, the Issuer shall also irrevocably deposit with the Trustee or accepted with a paying agent (or, if the Issuer is acting as its own paying agent, segregate and hold in trust) an amount equal to the Offer Amount to be invested in Temporary Cash Investments and to be held for payment in accordance with the provisions of this Section 4.06. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Issuer shall continue deliver to accrete the Trustee for cancelation the Securities or accrue interest;portions thereof that have been properly tendered to and are to be accepted by the Issuer. 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 Issuer to the Trustee is greater than the purchase price of the Securities (and other Senior Indebtedness) tendered, the Trustee shall deliver the excess to the Issuer immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(4iii) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note Security purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the NoteSecurity, with the an appropriate form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes duly completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent Issuer at the address specified in the notice at least three days before Business Days prior to the Asset Disposition Purchase Date;
(7) that . Holders shall be entitled to withdraw their election if the Company, the Depository Trustee or the Paying Agent, as the case may be, Issuer receives, not later than the second business day one Business Day prior to the Asset Disposition Purchase Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note Security that was delivered by the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note Security purchased;
(8) that, if . If at the expiration of the Offer Period the aggregate principal amount of Notes Securities and any other Senior Indebtedness included in the Offer surrendered by Holders holders thereof exceeds the Asset Disposition Offer Amount, the Company Issuer shall select the Notes Securities and other Senior Indebtedness to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company Issuer so that only Notes Securities and other Senior Indebtedness in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) that . Holders whose Notes were Securities are purchased only in part shall be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer); andSecurities surrendered.
(10iv) all other procedures, if any, determined by At the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in time the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver Issuer delivers Securities to the Trustee that are to be accepted for purchase, the Issuer shall also deliver an Officers’ ' Certificate stating that such Notes or portions thereof were Securities are to be accepted for payment by the Company Issuer pursuant to and in accordance with the terms of this Section 4.15 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes4.06. 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company A Security shall be deemed to have sold been accepted for purchase at the properties and assets of time the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15Trustee, and directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Issuer shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes Securities pursuant to this Section 4.154.06. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.154.06, the Company will Issuer shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Indenture Section by virtue of any conflictthereof.
Appears in 1 contract
Sources: Indenture (Acs Infosource Inc)
Limitation on Sales of Assets and Subsidiary Stock. The Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) at least equal to not less than the Fair Market Value fair market value (such ▇▇▇▇ ▇▇▇▇▇▇ Value fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors of the Company (including as to the value of all non-cash consideration) of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2)Equivalents, each of provided that the following shall will be deemed to be cash:
(a) any liabilities the assumption by the transferee of Indebtedness (as shown on the face of the Company’s other than Subordinated Obligations or such Restricted Subsidiary’s then most recent balance sheet), Disqualified Stock) of the Company or any Indebtedness of a Restricted Subsidiary (other than contingent liabilities and Guarantor Subordinated Obligations) that are assumed by the transferee Obligations or Disqualified Stock of any such assets pursuant to Restricted Subsidiary that is a customary novation agreement that releases 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 liabilityaction, be deemed to have applied such deemed cash to payment of Indebtedness in accordance with clause (3)(a) below);
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such the transferee that are within 30 days of receipt converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Dispositioncash; and
(c) any Designated Noncash Consideration Additional Assets received by the Company or any such Restricted Subsidiary in connection with such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value)Disposition; and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company or such Restricted Subsidiary, as the case may be,:
(ia) first, to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company (other than any Disqualified Stock or Subordinated Obligations) or Indebtedness of a Restricted Subsidiary (other than any Disqualified Stock or Guarantor Subordinated Obligations of a Restricted Subsidiary that is a Subsidiary Guarantor) (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) or any combination thereof within 365 days from the later of the date of such Asset Disposition (such period, or the “Application Period”), unless to the extent receipt of such Net Available Cash is otherwise used in accordance with clause (ii)Cash; provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the such Net Available Cash after application in accordance with clause (a) above (such balance, “Excess Proceeds”), is applied by to the extent the Company or such Restricted SubsidiarySubsidiary elects, as to invest in Additional Assets within 365 days from the case may belater of the date of such Asset Disposition or the receipt of such Net Available Cash (or within such 365 days, toward an offer to purchase Notes as set forth in enter into a definitive agreement with respect thereto that is consummated within 545 days after the next succeeding paragraphreceipt of such Net Available Cash); provided, however, provided that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this the Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Any Net Available Cash from Asset Dispositions that are not applied or invested as provided in, and within the time period set forth in, the preceding paragraph will not be applied in accordance with clause (3)(a) of deemed to constitute "Excess Proceeds." On the first paragraph of this Section 4.15), if day that the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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.exceeds
Appears in 1 contract
Sources: Indenture (Stewart & Stevenson LLC)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition unless:
of any Notes Collateral, unless (1) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cash) at the time of such Asset Disposition at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value including as to be determined on the date value of contractually agreeing to such Asset Dispositionall non-cash consideration) of the shares and assets subject to such Asset Disposition;
; (2) except in the case of any Permitted Asset Swap, at least 75% of the consideration from such Asset Disposition thereof received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause cash equivalents; (2), each of 3) to the following shall be deemed to be cash:
(a) extent that any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations consideration received by the Company or any such and its Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received Subsidiaries in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) , including any Designated Noncash Consideration received by Permitted Asset Swap, constitute securities or other assets that constitute Notes Collateral, such securities or other assets, including the assets of any Person that becomes a Restricted Subsidiary of the Company or any Restricted Subsidiary in as a result of such Asset Disposition having an aggregate Fair Market Value transaction, are concurrently with their acquisition added to the Notes Collateral securing the Securities, other than Excluded Assets; and (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c4) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:Disposition is paid directly by the purchaser thereof to the Noteholder Collateral Agent to be held in trust in an Asset Sale Proceeds Account for application in accordance with this Section 4.06. Notwithstanding the foregoing provisions of this Section 4.06(a), the Company and its Restricted Subsidiaries will not be required to cause any Net Available Cash to be held in an Asset Sale Proceeds Account in accordance with Section 4.06(a)(4) except to the extent the aggregate Net Available Cash from all Asset Dispositions of Notes Collateral which are not held in an Asset Sale Proceeds Account, or have not been previously applied in accordance with the provisions of the following paragraphs relating to the application of Net Available Cash from Asset Dispositions of Notes Collateral, exceeds $10 million.
(ab) firstWithin 365 days after the Note Collateral Agent’s receipt of the Net Available Cash from an Asset Disposition of any Notes Collateral, is applied by the Company or such Restricted Subsidiary, as Subsidiary shall at its option do any one or more of the case may be,following:
(i1) to acquire Additional Assets; provided, however, that such Additional Assets, including the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms assets of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness Person that becomes a Restricted Subsidiary of the Company or of as a Restricted Subsidiary within 365 days from the date result of such Asset Disposition acquisition, are concurrently with their acquisition added to the Notes Collateral securing the Securities; or
(such period2) make one or more offers to the Holders of the Securities (and, at the option of the Company, the “Application Period”), unless holders of Other Pari Passu Lien Obligations) to purchase Securities (and such Other Pari Passu Lien Obligations) pursuant to and subject to the extent such Net Available Cash is otherwise used conditions contained in accordance with clause this Indenture (iieach, a “Notes Collateral Asset Sale Offer”); provided, however, that, that in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a2), the Company or such Restricted Subsidiary will shall permanently retire such Indebtedness and will shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 4.06(b), orthe Company and Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this Section 4.06(b) until the aggregate Net Available Cash from all Asset Dispositions of Notes Collateral which are not applied in accordance with this Section 4.06(b) exceeds $20 million.
(iic) The Company shall commence a Notes Collateral Asset Sale Offer with respect to the Net Available Cash from any Asset Disposition of Notes Collateral not later than 10 Business Days after the later of (x) the 365th day after such Asset Disposition of Notes Collateral to the extent such Net Available Cash has not been used in accordance with Section 4.06(b) and (y) the date that the Net Available Cash from Asset Dispositions of Notes Collateral not applied in accordance with this covenant exceeds $20 million by mailing the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. After the Company or any Restricted Subsidiary has applied the Net Available Cash from any Asset Disposition of any Notes Collateral as provided in, and within the time periods required by, Section 4.06(b) and (c), the balance of such Net Available Cash, if any, from such Asset Disposition of any Notes Collateral shall be released by the Noteholder Collateral Agent to the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied for use by the Company or such Restricted Subsidiary for any purpose not prohibited by the terms of this Indenture and shall cease to constitute Net Available Cash of Asset Dispositions of Notes Collateral subject to the provisions of this Section 4.06. Additionally, the Company may, at its option, make a Notes Collateral Asset Sale Offer using proceeds from any Asset Disposition of Notes Collateral at any time after consummation of such Asset Disposition.
(d) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly consummate an Asset Disposition (other than an Asset Disposition of Notes Collateral) unless:
(1) the Company or such Restricted Subsidiary, ) receives consideration at the time of such Asset Disposition at least equal to the Fair Market Value (including as to the value of all non-cash consideration) of the shares and assets subject to such Asset Disposition; and
(2) except in the case may beof any Permitted Asset Swap, toward an offer to purchase Notes as set forth at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the next succeeding paragraphform of cash or cash equivalents.
(e) Within 365 days after the Company’s or Restricted Subsidiary’s receipt of the Net Available Cash from an Asset Disposition specified in Section 4.06(d), the Company or such Restricted Subsidiary may at its option do any one or more of the following:
(1) permanently reduce any Indebtedness under the Credit Agreement and/or any Indebtedness secured by a Permitted Lien (including the Credit Facilities) or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor (and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto) or any Pari Passu Indebtedness, in each case other than Indebtedness owed to the Company or a Subsidiary of the Company; provided, however, that pending if the Company or any Subsidiary Guarantor shall so reduce any Pari Passu Indebtedness, the Company shall equally and ratably reduce Indebtedness under the Securities by making an offer to all Holders of Securities to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and additional interest, if any, the pro rata principal amount of the Securities, such offer to be conducted in accordance with the procedures set forth below for an Asset Sale Offer but without any further limitation in amount; or
(2) acquire Additional Assets.
(f) Pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) aboveCash, the Company and its or such Restricted Subsidiaries Subsidiary of the Company may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Available Cash in Temporary Cash Investments. Any Net Available Cash from any manner not prohibited by this Indenture. On the 366th day after Asset Disposition (other than an Asset Disposition (or such earlier date, if any, of Notes Collateral) that are not applied as provided and within the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash 365-day time period set forth in Section 4.06(e) will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $50.0 20 million, the Company will be required to shall make an offer (“Asset Disposition Offer”) to all Holders of Notes Securities (and, to at the extent required by option of the terms of other Senior IndebtednessCompany, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any Asset Disposition (“Pari Passu NotesIndebtedness) (an “Asset Sale Offer”) to purchase the maximum principal amount of Notes Securities (and any principal amount or accreted value, as applicable, of such Pari Passu Notes to which the Asset Disposition Offer applies Indebtedness), that is an integral multiple of $1,000 that may be purchased out of the Excess Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes thereof, plus accrued and unpaid interest and additional interest, if any (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), to the date fixed for the closing of purchasesuch offer, in accordance with the procedures set forth herein or in this Indenture. The Company shall commence an Asset Sale Offer with respect to Excess Proceeds not later than ten Business Days after the agreements governing date that Excess Proceeds exceed $20 million by mailing the Pari Passu Notesnotice required pursuant to the terms of this Indenture, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that with a copy to the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu NotesTrustee. To the extent that the aggregate amount of Notes Securities (and such Pari Passu Notes so validly Indebtedness) tendered and not properly withdrawn pursuant to an Asset Disposition Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes Securities (and such Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer Indebtedness) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes Securities (and the holders, trustees Company or similar representatives, as the case may be, of trustee with respect to such Pari Passu Notes Indebtedness, shall select the such Pari Passu Notes Indebtedness) to be purchased on a pro rata basis on in the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notesmanner described in clause (g) below. Upon completion of any such Asset Disposition Sale Offer, the amount of Excess Proceeds which served as the basis for such Asset Sale Offer shall be reset at reduced to zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”)Additionally, the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) ormay, if less than the Asset Disposition Offer Amount has been so validly tenderedat its option, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of make an Asset Disposition Offer, the Company shall send, 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 pursuant to the Asset Disposition Offer. Any Asset Disposition Sale 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to using proceeds from any Asset Disposition at any time after consummation of such Asset Disposition.
(g) If more Securities (and any Other Pari Passu Lien Obligations) are tendered pursuant to a Notes Collateral Asset Sale Offer shall be than the Company is required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase Date, a notice setting forth the name of the Holderpurchase, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes Securities to be purchased on a will be determined pro rata basis (with such adjustments as may based on the principal amounts so tendered and the selection of the actual Securities for purchase shall be deemed appropriate made by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 Company will, to the extent lawful, accept for payment, Trustee on a pro rata basis to the extent necessarypracticable; provided, the Asset Disposition Offer Amount however, that no Securities (or any Other Pari Passu Lien Obligations) of Notes $2,000 or less shall be purchased in part. If more Securities (and Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, the principal amount of the Securities to be purchased shall be determined pro rata based on the principal amounts so tendered and the selection of the actual Securities for purchase shall be made by the Trustee on a pro rata basis to the extent practicable; provided, however, that no Securities (or Pari Passu Indebtedness) of $2,000 or less shall be purchased in part.
(h) For the purposes of Section 4.06, the following shall be deemed to be cash or cash equivalents:
(1) Temporary Cash Investments;
(2) the assumption or discharge of Indebtedness of the Company (other than obligations in respect of Disqualified Stock of the Company) or any Restricted Subsidiary (other than obligations in respect of Disqualified Stock or Preferred Stock of a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness other than, in each case, Indebtedness constituting Subordinated Obligations, in connection with such Asset Disposition; and
(3) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash, to the extent of cash received in that conversion within 90 days of the receipt of such securities.
(i) For the purposes of this Section 4.06, any sale by the Company or a Restricted Subsidiary of the Capital Stock of a Restricted Subsidiary that owns assets constituting Notes Collateral or portions ABL Collateral shall be deemed to be sale of such Notes Collateral or ABL Collateral (or, in the event of a Restricted Subsidiary that owns assets that include any combination of Notes Collateral and Pari Passu ABL Collateral a separate sale of each of such Notes so validly tendered Collateral and not properly withdrawn pursuant ABL Collateral). In the event of any such sale (or a sale of assets that includes any combination of Notes Collateral and ABL Collateral), the proceeds received by the Company and the Restricted Subsidiaries in respect of such sale shall be allocated to the Asset Disposition OfferNotes Collateral and ABL Collateral in accordance with their respective fair market values, or if less than which shall be determined by the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Notes so validly tendered and not properly withdrawn, Board of Directors of the Company in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) good faith or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 involving an amount in excess of Notes or holder or lender of Pari Passu Notes, as the case may be$25.0 million, 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereofIndependent Qualified Party. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15covenant, and shall comply with the provisions of this Section 4.15 with respect to such deemed any sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of by the Company or its any Restricted Subsidiaries deemed Subsidiary of the Capital Stock of any Person that does not own any assets constituting Notes Collateral will not be subject to Sections 4.06(a) through (c), but rather will be sold shall be deemed subject to be Net Available Cash for purposes of this Section 4.15. 4.06(d) through (f).
(j) The Company will shall comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes Securities pursuant to this Section 4.154.06. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.154.06, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Indenture Section 4.06 by virtue of any conflictits compliance with such securities laws or regulations.
Appears in 1 contract
Sources: Indenture (Affinia Group Intermediate Holdings Inc.)
Limitation on Sales of Assets and Subsidiary Stock. The Company (a) Each of Superior Energy and Issuer will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition unless:
(1) the Company Superior Energy, Issuer or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) at the time of such Asset Disposition at least equal to not less than the Fair Market Value fair market value (including as to the value of all non-cash consideration) as determined in good faith by the Board of Directors of Superior Energy, an Officer of Superior Energy, an Officer of Issuer or an Officer of such ▇▇▇▇ ▇▇▇▇▇▇ Value to Restricted Subsidiary with responsibility for such transaction, which determination shall be determined on the date conclusive evidence of contractually agreeing to such Asset Disposition) compliance with this provision, of the shares and assets subject to such Asset Disposition;
(2) in the case of an Asset Disposition for consideration exceeding $50.0 million, the fair market value is determined, in good faith, by the Board of Directors of Superior Energy, and evidenced by a resolution of the Board of Directors of Superior Energy set forth in an Officers’ Certificate delivered to the Trustee;
(3) either (a) at least 75% of the consideration from such Asset Disposition thereof received by the Company Superior Energy, Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Temporary Cash Equivalents Investments or Replacement Assets. For purposes (b) the fair market value (with the fair market value of this clause each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value) of all forms of consideration other than cash or Temporary Cash Investments received for all Asset Dispositions since the Issue Date does not exceed in the aggregate an amount equal to 10% of Consolidated Tangible Assets at the time each determination is made; and
(2), each 4) an amount equal to 100% of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s Net Available Cash from such Asset Disposition is applied by Superior Energy, Issuer or such Restricted Subsidiary’s then most recent , as the case may be, within 365 days after its receipt, at its option:
(A) to repay Secured Indebtedness under a Debt Facility;
(B) to acquire Additional Assets or to make capital expenditures in a Related Business; and
(C) to the extent of the balance sheetof 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 Indebtedness of Issuer that is pari passu with the Company Notes) to purchase Notes (and such other Indebtedness of Issuer) pursuant to and subject to the conditions contained in this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, Issuer or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment, if any, to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Pending application of Net Available Cash pursuant to this Section 4.10, such Net Available Cash shall be invested in Temporary Cash Investments or used to reduce loans outstanding under any revolving credit facility existing under a Debt Facility. For the purposes of this Section 4.10, the following are deemed to be cash or Temporary Cash Investments: (i) the assumption of Obligations of Superior Energy, Issuer or any Restricted Subsidiary (other than contingent liabilities and any of their Subordinated Obligations) that are assumed by and the transferee release of any such assets pursuant to a customary novation agreement that releases the Company Superior Energy, Issuer or such Restricted Subsidiary Subsidiary, as the case may be, from further liability;
all liability on such Obligations in connection with such Asset Disposition, (bii) any securities, notes or other obligations securities received by the Company Issuer or any such Restricted Subsidiary from such the transferee that are promptly converted by the Company Issuer or such Restricted Subsidiary into cash within 180 days after the receipt thereof (to the extent of the cash received in that conversionreceived) within 180 days of the closing of such Asset Disposition; and
and (ciii) any Designated Noncash Consideration received by the Company Superior Energy, Issuer or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (ciii) that is at that time outstanding, not to exceed the greater of (x) $100.0 60.0 million and (y) 1.5% of Consolidated Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the Fair Market Value fair market value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
. The requirement of Section 4.10(a)(4) shall be deemed to be satisfied if an agreement (3including a lease) an amount equal committing to 100% of make the Net Available Cash from such Asset Disposition:
(a) firstacquisitions or expenditures referred to therein is entered into by Superior Energy, is applied by the Company Issuer or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of time period specified in such Asset Disposition (such period, the “Application Period”), unless to the extent clause and such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be subsequently applied in accordance with clause such agreement within six months following such agreement. Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in Section 4.10(a)(4)(A) or (3)(aB) of within the first paragraph of this Section 4.15), if time period set forth therein will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $50.0 60.0 million, the Company Issuer will be required to make an offer (“Asset Disposition Offer”) Offer to all Holders of Notes and, to the extent required by under the terms of other Senior outstanding pari passu Indebtedness of Issuer, to the holders of such outstanding pari passu Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) to purchase the maximum aggregate principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out other pari passu Indebtedness of the Excess Proceeds, at an offer price in cash Issuer in an amount equal to $2,000 or an integral multiple of $1,000 in excess thereof at a purchase price of 100% of their principal amount (or, in the event such other pari passu Indebtedness of Issuer was issued with significant original issue discount, 100% of the principal amount of the Notes and Pari Passu Notes accreted value thereof), without premium, plus accrued and but unpaid interest and Additional Interest (or, in respect of such other pari passu Indebtedness of Issuer, such lesser price, if any, as may be provided for by the terms of such Indebtedness of Issuer) to but excluding the purchase date of purchase, in accordance with the procedures set forth herein or in Section 3.09. Issuer may satisfy the agreements governing foregoing obligations with respect to such Net Available Cash from an Asset Disposition by making an offer with respect to such Net Available Cash prior to the Pari Passu Notes, as applicable, in each case in integral multiples expiration of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notesapplication period. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly such pari passu Indebtedness tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to compliance with other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer or the pari passu Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee or the applicable Registrar shall select the Notes and the holders, trustees Issuer or similar representatives, as the case may be, of Pari Passu Notes agent for such pari passu Indebtedness shall select the Pari Passu Notes such pari passu Indebtedness to be purchased on a pro rata basis based on the basis principal amount (or accreted value) of the aggregate principal amount of Notes or such tendered Notes and Pari Passu Notespari passu Indebtedness tendered. Upon completion of any such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes Superior Energy and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company Issuer will comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to Section 3.09 hereof and this Section 4.154.10. To the extent that the provisions of any securities laws or regulations conflict with provisions of Section 3.09 hereof and this Section 4.154.10, the Company each of Superior Energy and Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof and this Indenture Section 4.10 by virtue of any conflictits compliance with such securities laws or regulations. Upon the occurrence of an Investment Grade Rating Event, this Section 4.10 will cease to apply to Issuer and will no longer have effect.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. The Company will (1) Holdings shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1a) the Company Holdings or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cashincluding 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 not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be fair market value, as determined on in good faith by the date Board of contractually agreeing to such Asset Disposition) Directors, of the shares and assets subject to such Asset Disposition;
(2b) at least 75% of the consideration from such Asset Disposition thereof received by the Company Holdings or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2)cash, each of provided that the following shall be deemed to be cash:
cash for purposes of this clause (ab): (i) the amount of any liabilities (as shown on the face of the Company’s Holdings', or such Restricted Subsidiary’s then 's, most recent balance sheet), sheet or in the notes thereto) of the Company Holdings or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligationsthat are by their terms subordinated to the Securities) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases assets, (ii) the Company or such Restricted Subsidiary from further liability;
(b) amount of any securities, notes or other obligations securities received by the Company Holdings or any such Restricted Subsidiary from such transferee that are converted by the Company Holdings or such Restricted Subsidiary into cash (to the extent of the cash received in that conversionreceived) within 180 90 days of following the closing of such Asset Disposition; and
, (ciii) the fair market value of any Designated Noncash Consideration Telecommunications Assets received by the Company Holdings or any Restricted Subsidiary in such Asset Disposition having an and (iv) the fair market value of any Permitted Joint Venture Interests received by Holdings or any Restricted Subsidiary in such Asset Disposition; provided that the aggregate Fair Market Value fair market value of all Permitted Joint Venture Interests received pursuant to this clause (as determined iv), valued, in each case, at the time of receipt, shall not exceed 10% of Consolidated Net Tangible Assets, (for purposes of this Section 4.06(1)(b), all determinations of fair market value shall be made in good faith by the Board of Directors of and evidenced by an Officers' Certificate delivered to the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in valueTrustee); and
(3c) from and after the date on which neither the Bank Indebtedness or the Notes (including any Refinancings thereof) are outstanding, an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company Holdings (or such Restricted Subsidiary, as the case may be,):
(i) first, to the extent the Company or any Restricted Subsidiary, as the case may be, Holdings elects (or is required by the terms of any Bank Indebtedness), to prepay, repay repay, redeem, purchase or purchase such Bank otherwise acquire Indebtedness (other than any Disqualified Stock) of a Wholly Owned Subsidiary (in each case, other than Indebtedness owed to Holdings or an Affiliate of Holdings and other than Preferred Stock) within 180 days of the Company or later of a Restricted Subsidiary within 365 days from the date of such Asset Disposition or the receipt of such Net Available Cash;
(such periodii) second, the “Application Period”), unless to the extent such of the balance of Net Available Cash is otherwise used after application in accordance with clause (i) of this Section 4.06(1)(c), to the extent Holdings or such Restricted Subsidiary elects to, or enters into a binding agreement to, reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with cash in an amount equal to the amount of Net Available Cash received by, or to be received by, Holdings or another Restricted Subsidiary) within 180 days of the later of such Asset Disposition or the receipt of such Net Available Cash; and
(iii) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (i) and (ii) of this Section 4.06(1)(c), to make an Offer to purchase Securities pursuant to and subject to the conditions set forth in paragraph (2) below; provided, however, that, if Holdings elects (or is required by the terms of any other Holdings Indebtedness), such Offer may be made ratably to purchase the Securities and other Pari Passu Indebtedness of Holdings; provided, however that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (ai) or (iii) of this Section 4.06(1)(c), the Company Holdings or such Restricted Subsidiary will shall retire such Indebtedness and will 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. Upon completion of any Offer (as defined below), or
(ii) the amount of Net Available Cash shall be reset at zero and Holdings shall be entitled to use any remaining proceeds for any corporate purposes to the extent permitted under this Indenture. Notwithstanding the Company or such foregoing provisions of this Section 4.06, Holdings and the Restricted Subsidiary elects, Subsidiaries shall not be required to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of apply any such Net Available Cash in accordance with clause (a) or clause (b) above, this Section 4.06 except to the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such extent that the aggregate Net Available Cash from all Asset Dispositions that is not applied in any manner not prohibited by accordance with this Indenture. On Section 4.06 exceeds $10,000,000.
(2) In the 366th day after event of an Asset Disposition that requires the purchase of Securities pursuant to clause (or such earlier date1)(c)(iii) of this Section 4.06(1)(c), Holdings shall be required to offer to purchase Securities tendered pursuant to an offer by the Company for the Securities (an "Offer") at a purchase price of 100% of their Accreted Value (or, if after May 14, 2004, principal amount plus accrued and unpaid interest thereon), and Additional Amounts in respect thereof, if any, as to the Board date of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied purchase in accordance with clause the procedures (3)(aincluding prorating in the event of oversubscription) of set forth in the first paragraph of this Section 4.15), if Indenture and to purchase other Pari Passu Indebtedness on the aggregate amount of Excess Proceeds exceeds $50.0 million, terms and to the Company will extent contemplated thereby. Holdings shall not be required to make an offer Offer for Securities (“and other Pari Passu Indebtedness) pursuant to this Section 4.06 if the Net Available Cash available therefor (after application of the proceeds as provided in clauses (1)(c)(i) and, (c)(ii) of this Section 4.06(1)(c)) is less than $10,000,000 for any particular Asset Disposition Offer”) to all Holders (which lesser amount shall be carried forward for purposes of Notes and, determining whether an Offer is required with respect to the extent required by the terms of other Senior IndebtednessNet Available Cash from any subsequent Asset Disposition).
(a) Promptly, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company and in any event within 10 days after Holdings becomes obligated to make an offer Offer, Holdings shall be obligated to purchase such Senior 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest deliver to the date of purchaseTrustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by Holdings either in accordance with whole or in part (subject to prorating as hereinafter described in the procedures set forth herein or event the agreements governing the Pari Passu Notes, as applicable, in each case Offer is oversubscribed) in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in at the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, by first class mail, a notice to the Trustee and to each Holder at its registered addressprice. 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 Holdings which Holdings in good faith believes will enable such Holders to make an informed decision (which at a minimum shall include (i) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of Holdings, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of Holdings filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (ii) a description of material developments in Holdings' business subsequent to the date of the latest of such reports, and (iii) if material, appropriate pro forma financial information) and all instructions and materials necessary to enable such Holder to tender Notes Securities pursuant to the Asset Disposition Offer. Any Asset Disposition , together with the address referred to in clause (c).
(b) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided above, Holdings shall be made deliver to all Holders. The notice, which shall govern the terms Trustee an Officers' Certificate as to (i) the amount of the Asset Disposition OfferOffer (the "Offer Amount"), shall state:
(1ii) that the allocation of the Net Available Cash from the Asset Disposition Dispositions pursuant to which such Offer is being made pursuant to this Section 4.15;
and (2iii) the Asset Disposition compliance of such allocation with the provisions of Section 4.06(1). On such date, Holdings shall also irrevocably deposit with the Trustee or with a paying agent (or, if Holdings is acting as its own paying agent, segregate and hold in trust) an amount equal to the Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment be invested pursuant to the Asset Disposition specific written directions of Holdings 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"), Holdings shall cease deliver to accrete the Trustee for cancellation the Securities or accrue interest portions thereof that have been properly tendered to and are to be accepted by Holdings. 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 Holdings to the Trustee is greater than the purchase price of the Securities tendered, the Trustee shall deliver the excess to Holdings immediately after the Asset Disposition Purchase Date;expiration of the Offer Period for application in accordance with this Section 4.06.
(5c) that Holders electing to have a Note Security purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the NoteSecurity, with the an appropriate form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes duly completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent Holdings at the address specified in the notice at least three days before Business Days prior to the Asset Disposition Purchase Date;
(7) that . Holders shall be entitled to withdraw their election if the Company, the Depository Trustee or the Paying Agent, as the case may be, receives, Holdings receives not later than the second business day one Business Day prior to the Asset Disposition Purchase Date, a notice facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note Security which was delivered by the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note Secu- rity purchased;
(8) that, if . If at the expiration of the Offer Period the aggregate principal amount of Notes Securities and any other Senior Subordinated Indebtedness included in the Offer surrendered by Holders holders thereof exceeds the Asset Disposition Offer Amount, the Company Holdings shall select the Notes Securities and 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 in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) that Holdings. Holders whose Notes were Securities are purchased only in part shall will be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer); andSecurities surrendered.
(10d) all other procedures, if any, determined by At the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver time Holdings delivers Securities to the Trustee which are to be accepted for purchase, Holdings shall also deliver an Officers’ ' Certificate stating that such Notes or portions thereof were Securities are to be accepted for payment by the Company Holdings pursuant to and in accordance with the terms of this Section 4.15 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes4.06. 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company A Security shall be deemed to have sold been accepted for purchase at the properties and assets of time the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15Trustee, and directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(4) Holdings shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes Securities pursuant to this Section 4.154.06. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.154.06, the Company will Holdings shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Indenture Section by virtue of any conflictthereof.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cashincluding 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 not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;,
(2) at least 75% of the consideration from such Asset Disposition thereof received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash cash, assets useful in a Permitted Business or Cash Equivalents Permitted Securities, or Replacement Assets. For purposes the assumption by the purchaser of this clause (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by their terms subordinated to the transferee Notes) as a result of which the Company and the Restricted Subsidiaries are no longer obligated with respect to those liabilities; provided that the amount of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition shall be deemed to be cash for the purposes of this provision (but for no other purpose) so long as such amount, taken together with the Fair Market Value when received of all other Designated Noncash Consideration that is at that time outstanding (i.e., that has not been sold for or otherwise converted into cash or Permitted Securities), does not exceed $50,000,000; provided, further, that (A) securities or other assets received by the Company or any Restricted Subsidiary from such the transferee that are converted by the Company or such Restricted Subsidiary into cash (within 180 days after the closing of such Asset Disposition shall be considered to be cash to the extent of the cash received in that conversion; and (B) within 180 days any cash consideration paid to the Company or the Restricted Subsidiary in connection with the Asset Disposition that is held in escrow or on deposit to support indemnification, adjustment of the closing purchase price or similar obligations in respect of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)shall be considered to be cash, taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset DispositionDisposition is applied by the Company (or such Restricted Subsidiary, as the case may be) within 365 days (or, in the case of a Foreign Disposition as provided in Section 4.10(c), 730 days) after the later of the date of such Asset Disposition and the receipt of such Net Available Cash:
(aA) firstto prepay, repay, purchase, repurchase, redeem, retire, defease or otherwise acquire for value Secured Indebtedness of the Company or a Subsidiary Guarantor (other than any Disqualified Stock or Subordinated Obligations) or Indebtedness of a Restricted Subsidiary that is applied not a Subsidiary Guarantor, in each case other than Indebtedness owed to the Company or an Affiliate of the Company;
(B) 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); provided, that a binding commitment to apply Net Available Cash in accordance with this clause (B) shall be treated as an application of such Net Available Cash from the date of such commitment if (i) such reinvestment is consummated within 180 days at the end of such 365 day period (or, in the case of a Foreign Disposition as provided in Section 4.10(c), 730-day period) referred to in this clause (3) and (ii) if such reinvestment is not consummated within the period set forth in subclause (i) or such binding commitment is terminated, the Net Available Cash shall constitute available Net Available Cash; or
(C) (i) to redeem the Notes or make open market purchases thereof at a price not less than 100% of the principal amount thereof or (ii) to make an Asset Disposition Offer to purchase Notes pursuant to and subject to the conditions set forth in Section 4.10(b); provided, however, that if the Company elects (or is required by the terms of any Pari Passu Indebtedness), such Asset Disposition Offer may be made ratably (determined based upon the respective principal amounts of the Notes and such Pari Passu Indebtedness being purchased or repaid) to purchase the Notes and to purchase or otherwise repay such Pari Passu Indebtedness; provided that pending final application of any such Net Available Cash in accordance with clause (3)(A), (B) or (C) above, the Company and the Restricted Subsidiaries may temporarily reduce revolving Indebtedness outstanding under the Credit Agreement or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. To the extent of the balance of such Net Available Cash after application in accordance with clauses (3)(A), (B) and (C) above, the Company or such Restricted Subsidiary, as the case may be,
, may use such balance for any general corporate purpose not prohibited by the terms of this Indenture. In connection with any prepayment, repayment, purchase, repurchase, redemption, retirement, defeasance or other acquisition for value of Indebtedness pursuant to clause 3(A) or (iC) to the extent above, the Company or any such Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), 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 repaid, purchased, or
(ii) to repurchased, redeemed, retired, defeased or otherwise acquired for value. Notwithstanding the extent foregoing provisions of this Section 4.10, the Company or such and the Restricted Subsidiary elects, Subsidiaries will not be required to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of apply any such Net Available Cash in accordance with clause (a) or clause (b) above, this covenant except to the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such extent that the aggregate Net Available Cash in any manner from all Asset Dispositions that is not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds covenant exceeds $50.0 million50,000,000.
(b) In the event of an Asset Disposition that requires the purchase of Notes pursuant to Section 4.10(a)(3)(C), the Company will be required required
(i) to make purchase Notes tendered pursuant to an offer by the Company for the Notes (the “Asset Disposition Offer”) at a purchase price of 100% of their principal amount plus accrued and unpaid interest thereon to all the date of purchase (subject to the right of Holders of Notes record on the relevant date to receive interest due on the relevant Interest Payment Date) in accordance with the procedures, including prorating in the event of oversubscription, set forth in this Indenture, and,
(ii) to purchase or otherwise repay Pari Passu Indebtedness of the Company on the terms and to the extent required by contemplated thereby at the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring purchase price set forth in the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any Asset Disposition relevant documentation (“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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus including accrued and unpaid interest to the date of purchaseacquisition, in accordance with the procedures set forth herein or “purchase price”), provided that to the agreements governing extent the purchase price of any such Pari Passu Notes, as applicable, in each case in integral multiples Indebtedness exceeds 100% of $1,000 in the principal amount (provided that thereof, plus accrued and unpaid interest thereon to the unpurchased portion date of any Note acquisition, the Company shall not be less than $2,000 in principal amount) oruse any Net Available Cash to pay such purchase price, in except as permitted by the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notesnext sentence. To the extent that If the aggregate amount purchase price of Notes and Pari Passu Notes so validly Indebtedness tendered and not properly withdrawn pursuant to an the Asset Disposition Offer is less than the Excess Proceeds, Net Available Cash allotted to the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If purchase of the aggregate principal amount of Notes and Pari Passu Notes validly tendered and Indebtedness, the Company will apply the remaining Net Available Cash for any general corporate purpose not properly withdrawn pursuant prohibited by the terms of this Indenture. The Company will not be required to make an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered for Notes and Pari Passu NotesIndebtedness pursuant to this Section 4.10 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 4.10(a)(3)(A) and (B)) is less than $50,000,000 for any particular Asset Disposition (which lesser amount will be carried forward for purposes of determining whether an Asset Disposition Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon completion consummation of such any Asset Disposition Offer, the amount Net Available Cash in respect of Excess Proceeds any Asset Disposition(s) shall be reset at reduced to zero. Each Asset Disposition Offer will remain open for a period .
(c) Notwithstanding any other provisions of 20 Business Days following its commencementthis Section 4.10, except to the extent that an amount equal to any or all of the Net Available Cash of any Asset Disposition by a longer period Foreign Subsidiary (a “Foreign Disposition”) is required (x) prohibited or delayed by applicable law 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, solely with respect to an amount equal to the portion of such Net Available Cash so affected, the 365-day period set forth in clause (a)(3) above shall be extended to 730 days.
(i) Promptly, and in any event within 10 days after the Company becomes obligated to make an Asset Disposition Offer, the Company shall be obligated to deliver to the Trustee and send or, at the request of the Company have the Trustee send (such notice to be provided to the Trustee at least five Business Days before the Trustee is requested to send such notice. unless a shorter period shall be satisfactory to the Trustee), in the name and on behalf of the Company, by first-class mail to each Holder, or in the case of Global Notes, send in accordance with the Applicable Procedures of the Depositary, a written notice stating that the Holder may elect to have its Notes purchased by the Company either in whole or in part (subject to prorating as hereinafter described in the event the Asset Disposition Offer is oversubscribed) in minimum denominations of $2,000 of principal amount or any greater integral multiple of $1,000 thereof, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the “Purchase Date”) and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum shall include (1) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports); provided that in lieu of providing the reports specified in this subclause (1), the Company may, at its option, notify the holders that such reports are available to them in electronic format through the SEC’s ▇▇▇▇▇ system, (2) a description of material developments in the Company’s business subsequent to the date of the latest of such reports, and (3) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Notes pursuant to the Asset Disposition Offer, together with the address referred to in clause (iii).
(ii) Not later than the date upon which written notice of an Asset Disposition Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Disposition Offer (the “Asset Disposition Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Asset Disposition Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10 (a) and (b). On the Business Day immediately preceding the Purchase Date, the Company shall 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 Asset Disposition Offer Amount to be invested, at the Company’s written directions, in Cash Equivalents and to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Disposition Offer remains open (the “Asset Disposition Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof that have been properly tendered to and are to be accepted by the Company. No later The Trustee (or the Paying Agent, if not the Trustee) shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price for such Holder’s tendered Notes. In the event that the Asset Disposition Offer Amount delivered by the Company to the Trustee is greater than five Business Days the purchase price of the Notes tendered, the Trustee shall deliver the excess to the Company promptly after the termination expiration of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to for application in accordance with this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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:4.10.
(1iii) that the Asset Disposition Offer is being made pursuant to this Section 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the an appropriate form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes duly completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent Company at the address specified in the notice at least three days before Business Days prior to the Asset Disposition Purchase Date;
(7) that . Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, Company receives not later than the second business day one Business Day prior to the Asset Disposition Purchase Date, a notice facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered by the Holder delivered for purchase and a statement that such Holder is withdrawing his its election to have such Note purchased;
(8) that, if . If at the expiration of the Asset Disposition Offer Period the aggregate principal amount of Notes surrendered by Holders holders thereof plus the purchase price of other Pari Passu Indebtedness of the Company or the Subsidiary Guarantors being purchased or otherwise repaid exceeds the Asset Disposition Offer Amountamount of Net Available Cash, the Company shall select the Notes and 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 other Pari Passu Indebtedness in minimum denominations of $1,0002,000, or integral multiples of $1,000 in excess thereof, shall be purchased);
(9) that . Holders whose Notes were are purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer); andsurrendered.
(10iv) all other procedures, if any, determined by At the Company, consistent with this Indenture, that a Holder must follow in order to have its time the Company delivers Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will Trustee that are to be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Dateaccepted for purchase, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will also deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were are to be accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.15 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu NotesSection. 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new A 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold been accepted for purchase at the properties and assets of time the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15Trustee, and shall comply with directly or through an agent, mails or delivers payment therefor to the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. surrendering Holder.
(v) The Company will shall comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.154.10. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.154.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture Section 4.10 by virtue of any conflictthereof.
Appears in 1 contract
Sources: Indenture (Aecom)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will Issuers shall not, and will shall not permit any of its their Restricted Subsidiaries to, make any Asset Disposition unless:
(1i) the Company an Issuer or such Restricted SubsidiarySubsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value, as determined in good faith by BMC's Board of Directors (including as to the case may bevalue of all noncash consideration), receives consideration (both cash and non cash) equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(2ii) at least 7580% of the consideration from such Asset Disposition thereof received by the Company Issuers or such Restricted Subsidiary is in the form of cash or Cash Equivalents other than in the case where an Issuer or a Restricted Subsidiary is exchanging all or substantially all of the assets of one or more broadcast stations operated by an Issuer or such Restricted Subsidiary, as the case may be, (including by way of the transfer of Capital Stock), for all or substantially all of the assets (including by way of the transfer of Capital Stock) constituting one or more broadcast stations operated by another Person (an "Asset Swap"), provided, however, that at least 80% of the consideration, if any, received by the Issuers and their Restricted Subsidiaries in such Asset Swap, other than the stock and assets of broadcast station(s), is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset DispositionEquivalents; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company Issuers (or such Restricted Subsidiary, as the case may be,
) (iA) first, to the extent the Company an Issuer or any Restricted Subsidiary, as the case may be, Subsidiary elects (or is required by the terms of any Bank Senior Secured Indebtedness), (x) to prepay, repay or purchase Senior Secured Indebtedness in each case owing to a Person other than the Issuers or any of their Subsidiaries or (y) to the investment in or acquisition of Additional Assets within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; (B) second, 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 (A), to make an offer to purchase Securities, at 100% of Accreted Value thereof if such purchase date occurs prior to December 15, 1999, and at 100% of the principal amount thereof if such purchase date occurs on or after December 15, 1999, in each case plus accrued and unpaid interest, if any, thereon; (C) third, within 90 days 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 prepay, repay or repurchase Indebtedness (other than Preferred Stock) of a Wholly-Owned Subsidiary (in each case other than Indebtedness owed to an Issuer or a Subsidiary); and (D) fourth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C), to (w) the investment in or acquisition of Additional Assets, (x) the making of Temporary Cash Investments, (y) the prepayment, repayment or purchase such Bank of Indebtedness of an Issuer (other than Indebtedness owing to any Subsidiary of an Issuer) or Indebtedness of any Subsidiary (other than Indebtedness owed to an Issuer or any of its Subsidiaries) or (z) any other purpose otherwise permitted under this Indenture, in each case within the Company later of 45 days after the application of Net Available Cash in accordance with clauses (A), (B) and (C) or of a Restricted Subsidiary within the date that is 365 days from the date receipt of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii)Cash; provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (aA), (B), (C) or (D) above, the Company applicable Issuer or such Restricted Subsidiary will shall retire such Indebtedness and will 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, or
(ii) the Issuers and their Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the Company or such Restricted Subsidiary elects, aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this covenant at any time exceeds $10.0 million. The Issuers shall not be required to invest in Replacement Assets within the applicable Application Period; and
(b) second, make an offer for Securities pursuant to the extent of the balance of this covenant if the Net Available Cash available therefor (after application of the proceeds as provided in accordance with clause (aA)) above is less than $10.0 million for any particular Asset Disposition (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward which lesser amounts shall be carried forward for purposes of determining whether an offer is required with respect to purchase Notes as set forth in the next succeeding paragraphNet Available Cash from any subsequent Asset Disposition). Notwithstanding the foregoing, the Issuers will not be required to comply with the terms of this Section 4.10 to the extent such Asset Disposition consists of a sale of the Missouri Properties; provided, however, that pending if the final application of any such Net Available Cash from such Asset Disposition exceeds $7.5 million, the Issuers will be required to apply the amount of such excess in accordance with the provision of this Section 4.10. For the purposes of this Section 4.10, the following will be deemed to be cash: (x) the assumption by the transferee of Senior Secured Indebtedness of an Issuer, or Senior Secured Indebtedness of any Restricted Subsidiary of an Issuer and the release of such Issuer or such Restricted Subsidiary from all liability on such senior indebtedness in connection with such Asset Disposition (in which case the Issuers shall, without further action, be deemed to have applied such assumed Indebtedness in accordance with clause (aA) of the preceding paragraph) and (y) securities received by an Issuer or clause any Restricted Subsidiary of an Issuer from the transferee that are promptly (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited event within 60 days) converted by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company Issuer or such Restricted Subsidiary determines into cash.
(b) In the event of an Asset Disposition that requires the Net Available Cash will not be applied in accordance with purchase of Securities pursuant to clause (3)(a) of the first paragraph of this Section 4.15a)(iii)(B), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company Issuers will be required to make purchase Securities tendered pursuant to an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms Issuers for the Securities at a purchase price of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out 101% of the Excess Proceeds, at an offer price in cash in an amount equal to 100Accreted Value thereof or 101% of the principal amount of the Notes thereof, as applicable, under clause (a)(iii)(B), and Pari Passu Notes in each case plus accrued and unpaid interest interest, if any, to the purchase date of purchase, in accordance with the procedures (including prorating in the event of oversubscription) set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 Securities 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 Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company pursuant to the Holder thereof. The Company will publicly announce offer is less than the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes allotted to the purchase of this Section 4.15. the Securities, the Issuers will apply the remaining Net Available Cash in accordance with clauses (a) (iii) (C) or (D) above.
(c) The Company Issuers will comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes Securities pursuant to this Section 4.15Indenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.154.10, the Company 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 conflictthereof.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition following the Issue Date unless:
(1i) the Company or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Fair Market Value to be determined on as of the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;; and
(2ii) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents Equivalents. The Company shall determine the Fair Market Value of any consideration from such Asset Disposition that is not cash or Replacement Assets. Cash Equivalents.
(b) For the purposes of this clause (2)Section 3.07, each of the following shall be are deemed to be cash:
: (ax) any the assumption of Indebtedness or other liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company (other than Disqualified Stock or Junior Indebtedness) or Indebtedness or other liabilities of any Restricted Subsidiary (other than contingent liabilities Disqualified Stock or Junior Indebtedness) and Subordinated Obligations) that are assumed by the transferee release of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
all liability on such Indebtedness or liabilities in connection with such Asset Disposition, (by) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such the transferee that are converted within 180 days by the Company or such Restricted Subsidiary into cash and (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(cz) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith Good Faith by the Board of Directors of the Company), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (cz) that is at that time outstanding, not to exceed $100.0 57.5 million at the time of the receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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 (McClatchy Co)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company 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 Company Borrower or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cash) at the time of such Asset Disposition at least equal to not less than the 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 to be determined on the date of contractually agreeing to such Asset Disposition) of the shares ); and assets subject to such Asset Disposition;
(2ii) at least 7575.0% of the consideration from such Asset Disposition thereof received by the Company Borrower or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Temporary Cash Equivalents or Replacement Assets. Investments.
(b) For purposes of this clause (2)a)(ii) of this Section 7.5, each of and for no other purpose under this Agreement, the following shall be deemed to be cash:Temporary Cash Investments: 97
(ai) any liabilities (as shown on the face assumption or Discharge of Senior Indebtedness of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company Borrower or any Restricted Subsidiary Guarantor (other than contingent liabilities obligations in respect of Disqualified Stock of the Borrower or Preferred Stock of a Guarantor) or any Indebtedness or Preferred Stock of a Restricted Subsidiary that is not a Guarantor and Subordinated Obligations) that are assumed by the transferee release of any such assets pursuant to a customary novation agreement that releases the Company Borrower or such Restricted Subsidiary from further liability;
all liability on such Indebtedness in connection with such Asset Disposition; (bii) any securities, notes securities or other obligations received by the Company Borrower or any such Restricted Subsidiary from such the transferee that are converted by the Company 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) within 180 days the Fair Market Value of (A) any assets (other than securities) received by the closing Borrower or any Restricted Subsidiary 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 Asset DispositionPerson by the Borrower or any Restricted Subsidiary or (C) a combination of (A) and (B); and
and (civ) any Designated Noncash Non-cash Consideration received by the Company Borrower or any such Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)Value, taken together with the Fair Market Value of all other Designated Noncash Non-cash Consideration received pursuant to this clause (civ) that is at that time outstanding, not to exceed $100.0 million (greater than 7.5% of Consolidated Net Tangible Assets at the time of the receipt of such Designated Non-cash Consideration, with the Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and.
(3c) an amount equal to 100% of The Borrower shall apply the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”Section 2.3(b)(iii). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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: Credit and Guaranty Agreement (U.S. Concrete, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. The Company will (a) Symmetry shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition with respect to First-Priority Assets or the Non-ABL Intercompany Note Assets, unless:
(1) the Company Symmetry or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cash) at the time of such Asset Disposition at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value including as to be determined on the date value of contractually agreeing to such Asset Dispositionall non-cash consideration) of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration received therefor by Symmetry or such Restricted Subsidiary is in the form of (A) cash or cash equivalents, (B) First-Priority Assets to be used in a Related Business, to the extent they are added to the First-Priority Collateral reasonably promptly after the acquisition, (C) in the case of Intercompany Note Collateral, Intercompany Note Assets to be used in a Related Business, to the extent that they are added to the Intercompany Note Collateral reasonably promptly after the acquisition, or (D) Capital Stock in one or more Persons engaged in a Related Business that are or thereby become Wholly Owned Subsidiaries;
(3) to the extent that Capital Stock of a Person is received by Symmetry and the Restricted Subsidiaries pursuant to clause (2)(D) above, assets of such Person that qualify as First-Priority Assets with a Fair Market Value equal to or greater than (A) 75% of the Fair Market Value of the First-Priority Assets that are the subject of such Asset Disposition less (B) the Fair Market Value of any consideration received by Symmetry and the Restricted Subsidiaries pursuant to clause (2)(A) or (B) above are added to the First-Priority Collateral reasonably promptly after the acquisition; and
(4) an amount equal to 100% of the Net Available Cash from such Asset Disposition received is applied by the Company Symmetry or such Restricted Subsidiary, as the case may be:
(A) first, to the extent Symmetry or such Restricted Subsidiary so elects, to acquire Additional Assets within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided that such Additional Assets constitute (x) First-Priority Assets that are added to the First-Priority Collateral reasonably promptly after their acquisition, (y) in the case of Non-ABL Intercompany Note Assets, Non-ABL Intercompany Note Assets that are added to the Intercompany Note Collateral reasonably promptly after their acquisition, or (z) Capital Stock of a Wholly Owned Subsidiary with assets that qualify as First-Priority Assets to the extent that such First-Priority Assets, together with any First-Priority Assets described in clause (x) above and any assets comprising Intercompany Note Collateral described in clause (y) above, have a Fair Market Value equal to or greater than the Net Available Cash applied pursuant to this clause (A) and such First-Priority Assets are added to the First-Priority Collateral reasonably promptly after the acquisition;
(B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above, to make an offer to purchase the Securities and any Other First-Priority Obligations pursuant to and subject to the conditions set forth in clause (d) of this Section 4.06; and
(C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) above, for any general corporate purpose not restricted by the terms of this Indenture; provided that pending the final application of any such Net Available Cash, (x) in the case of Net Available Cash from any Asset Disposition of First-Priority Assets, it is deposited in the Notes Collateral Account and pledged as additional First-Priority Collateral, and (y) in the case of Net Available Cash from any Asset Disposition of Non-ABL Intercompany Note Assets, it is deposited in the Intercompany Note Collateral Account and pledged as additional Intercompany Note Collateral.
(b) Symmetry shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition (other than an Asset Disposition subject to Section 4.06(a)), unless:
(1) other than in the case of any Permitted Factoring Transaction, Symmetry or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the Fair Market Value (including as to the value of all non-cash consideration) of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration received therefor by Symmetry or such Restricted Subsidiary is in the form of (A) cash or Cash Equivalents cash equivalents or Replacement (B) Additional Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company Symmetry (or such Restricted Subsidiary, as the case may be),
(iA) first, to the extent the Company that Symmetry or any such Restricted Subsidiary, as the case may be, Subsidiary so elects (or is required by the terms of any Bank Indebtedness), to prepay, repay repay, redeem or purchase such Bank any Credit Agreement Obligations or any Indebtedness of the Company or (other than any Preferred Stock) of a Restricted Subsidiary (other than the Company) that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to Symmetry or an Affiliate of Symmetry) within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(such periodB) second, the “Application Period”), unless to the extent of the balance of such Net Available Cash is otherwise used after application in accordance with clause (iiA) above, to the extent Symmetry or such Restricted Subsidiary so elects, to acquire Additional Assets within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and
(C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) above, to make an offer to the Holders (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company pursuant to and subject to the conditions contained in this Indenture and clause (d) of this Section 4.06); provided, however, that, that in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a)A) or (C) above, the Company Symmetry or such Restricted Subsidiary will retire such Indebtedness and will shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph (b), or
Symmetry and the Restricted Subsidiaries shall not be required to apply any Net Available Cash from Asset Dispositions in accordance with this paragraph (iib) except to the extent that the Company aggregate Net Available Cash from all Asset Dispositions that is not applied in accordance with this paragraph (b) exceeds $5,000,000. Pending application of Net Available Cash pursuant to this paragraph (b), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness.
(c) For the purposes of this Section 4.06, the following are deemed to be cash or cash equivalents:
(1) the assumption or discharge of Indebtedness of Symmetry or any Restricted Subsidiary (other than obligations in respect of Disqualified Stock of Symmetry or Preferred Stock of a Subsidiary Guarantor or Novamerican Steel) and the release of Symmetry or such Restricted Subsidiary electsfrom all liability on such Indebtedness in connection with such Asset Disposition; provided that, with respect to invest in Replacement Assets within the applicable Application Periodany Asset Disposition subject to paragraph (a) above, such liabilities constituted trade payables or First-Priority Obligations; and
(b2) secondany securities received by Symmetry or any Restricted Subsidiary from the transferee that are converted by Symmetry or such Restricted Subsidiary into cash within 90 days after such Asset Disposition, to the extent of the balance cash received in that conversion. For the purposes of this Section 4.06, any sale by Symmetry or a Restricted Subsidiary of the Net Available Cash after application Capital Stock of a Restricted Subsidiary that owns assets constituting First-Priority Assets, Second-Priority Assets, Non-ABL Intercompany Note Assets or Canadian ABL Assets shall be deemed to be a sale of such First-Priority Assets, Second-Priority Assets, Non-ABL Intercompany Note Assets or Canadian ABL Assets (or, in the event of a Restricted Subsidiary that owns assets that include all or any combination of First-Priority Assets, Second-Priority Assets, Non-ABL Intercompany Note Assets or Canadian ABL Assets, a separate sale of each of such First-Priority Assets, Second-Priority Assets, Non-ABL Intercompany Note Assets and Canadian ABL Assets). If any such sale (or a sale of assets that includes all or any combination of First-Priority Assets, Second-Priority Assets, Non-ABL Intercompany Note Assets and Canadian ABL Assets), the proceeds received by Symmetry and the Restricted Subsidiaries in respect of such sale shall be allocated to the First-Priority Assets, Second-Priority Assets, Non-ABL Intercompany Note Assets and Canadian ABL Assets in accordance with their respective fair market values, which shall be determined by the Board of Directors of Symmetry or an independent third party. In addition, for purposes of this Section 4.06, any sale by Symmetry or any Restricted Subsidiary of the Capital Stock of any Person that does not own any assets constituting First-Priority Assets or Non-ABL Intercompany Note Assets will not be subject to paragraph (a) above above, but rather will be subject to paragraph (such balanceb) above.
(d) In the event of an Asset Disposition that requires the purchase of Securities (and, “Excess Proceeds”)in the case of clause (a)(4)(B) above, is applied Other First-Priority Obligations, and, in the case of clause (b)(3)(C) above, other Senior Indebtedness of the Company) pursuant to clause (a)(4)(B) or (b)(3)(C) above, the Company shall purchase the Securities tendered pursuant to an offer by the Company for the Securities (and such Other First-Priority Obligations or such Restricted SubsidiarySenior Indebtedness of the Company, as the case may be) (the “Offer”) at a purchase price of 100% of their principal amount (or, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application event such Other First-Priority Obligations or Senior Indebtedness of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued and its Restricted Subsidiaries may temporarily reduce Indebtedness unpaid interest (or, in respect of such Other First-Priority Obligations or otherwise invest Senior Indebtedness, such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier datelesser price, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not may be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required provided for by the terms of other Senior Indebtedness, to all holders of other such Other First-Priority Obligations or Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior 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 purchased out of the Excess ProceedsCompany), at an offer price in cash in an amount equal to 100% the case of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchaseSecurities, in accordance with the procedures (including prorating in the event of oversubscription) set forth herein in Section 4.06(e) (it being understood that the applicable Net Available Cash shall be applied ratably to the Securities and such Other First-Priority Obligations or Senior Indebtedness based on the agreements governing respective amounts of the Pari Passu NotesSecurities and such Other First-Priority Obligations and Senior Indebtedness). If the aggregate purchase price of the Securities and, as applicable, Other First-Priority Obligations or Senior Indebtedness tendered exceeds the Net Available Cash allotted to their purchase, the Company will select the securities to be purchased on a prorata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make any such Offer pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $5,000,000 (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon completion of such Offer, Net Available Cash will be deemed to be reduced by the aggregate amount of such Offer.
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first- class mail to each case Holder, a written notice stating that the Holder may elect to have its Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(d) in the event the Offer is oversubscribed) in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in at the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, by first class mail, a notice to the Trustee and to each Holder at its registered addressprice. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the “Purchase Date”) and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to enable such Holder to tender Notes Securities pursuant to the Asset Disposition Offer. Any Asset Disposition , together with the information contained in Section 4.06(e)(3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall be made deliver to all Holders. The notice, which shall govern the terms Trustee an Officers’ Certificate as to (A) the amount of the Asset Disposition Offer (the “Offer Amount”), including information as to any other Senior Indebtedness included in the Offer, shall state:
(1B) that the allocation of the Net Available Cash from the Asset Disposition Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b), as applicable. On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the “Offer Period”), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;4.06.
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note Security purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the NoteSecurity, with the an appropriate form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes duly completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent Company at the address specified in the notice at least three days before Business Days prior to the Asset Disposition Purchase Date;
(7) that . Holders shall be entitled to withdraw their election if the Company, the Depository Trustee or the Paying Agent, as the case may be, receives, Company receives not later than the second business day one Business Day prior to the Asset Disposition Purchase Date, a notice telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Security which was delivered for purchase by the Holder and a statement that such Holder ▇▇▇▇▇▇ is withdrawing his its election to have such Note Security purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) that . Holders whose Notes were Securities are purchased only in part shall be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer); andSecurities surrendered.
(104) all other procedures, if any, determined by At the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in time the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid Company delivers Securities to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will Trustee which are to be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Dateaccepted for purchase, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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.also de
Appears in 1 contract
Sources: Indenture (Novamerican Steel Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any consummate an Asset Disposition Sale unless:
(1) the Company or such the applicable Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) at the time of the Asset Sale at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;sold or otherwise disposed of as determined in good faith by the Board of Directors of the Company (including the value of all non-cash consideration); and
(2) at least 75% of the consideration from such Asset Disposition received for the assets sold by the Company or such the Restricted Subsidiary, as the case may be, is in the Asset Sale will be in the form of cash or cash, Cash Equivalents or Replacement Assetsassets or Capital Stock which the Company or a Permitted Investing Subsidiary would be permitted to use the Net Cash Proceeds from such Asset Sale to purchase or invest in, if any, pursuant to clause (2) of Section 3.12(b). For the purposes of this clause (2), each of the following shall be are deemed to be cash:
(ai) any Indebtedness and other liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent consolidated balance sheet), sheet of the Company or any Restricted Subsidiary prior to the date of such Asset Sale (other than contingent liabilities and Subordinated ObligationsIndebtedness) (i) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases and (ii) for which the Company or and its Restricted Subsidiaries are released from all liability at the time of such Restricted Subsidiary from further liabilityAsset Sale;
(bii) any securities, notes or other obligations Obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted converted, sold or exchanged by the Company or such Restricted Subsidiary into cash (or Cash Equivalents within 90 days, to the extent of the cash or Cash Equivalents received in that conversion) within 180 days of the closing of such Asset Disposition, sale or exchange; and
(ciii) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in such Asset Disposition Sale having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (ciii) that is at that time outstanding, not to exceed $100.0 million (7.5 million, with the Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and.
(3b) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the The Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any a Restricted Subsidiary, as the case may be, elects may (or is required by subject to the terms proviso in clause (2) below) apply the Net Cash Proceeds of any Bank Indebtedness), to such Asset Sale within 360 days thereof to:
(1) prepay, repay repay, purchase, repurchase, redeem, retire, defease or purchase such Bank otherwise retire for value (collectively, “repay”) any:
(i) secured Indebtedness of the Company or a Restricted Subsidiary;
(ii) Indebtedness of any Restricted Subsidiary that is not a Note Guarantor; or
(iii) any Senior Indebtedness, provided that, if the Company repays any Senior Indebtedness other than the Notes pursuant to this clause (iii), it must repay Notes or make an offer to repurchase the Notes at a price equal to or above 100% of the principal amount thereof, whether or not the Holders accept such offer, in each case on a pro rata basis with such other Senior Indebtedness; in the case of each of clauses (i) through (iii) above, constituting Indebtedness for borrowed money or Capitalized Lease Obligations, and permanently reduce the commitments with respect thereto without Refinancing; or
(2) purchase or otherwise invest in:
(i) assets (other than current assets as determined in accordance with GAAP or Capital Stock) to be used by the Company or a Permitted Investing Subsidiary in a Permitted Business or capital expenditures;
(ii) all or substantially all of the assets of a Permitted Business or properties; or
(iii) Capital Stock of: (A) a Restricted Subsidiary held by a Person other than the Company or any of its Restricted Subsidiaries or (B) a Person engaged in a Permitted Business that becomes, upon the purchase or investment, a Wholly Owned Subsidiary or, in the case of an Asset Sale in respect of assets or Capital Stock of a Restricted Subsidiary, a Restricted Subsidiary within 365 days of which the Company owns, directly or indirectly, an equal or greater percentage of the economic and voting interests of its Capital Stock as it does (immediately prior to such Asset Sale) in respect of the Restricted Subsidiary whose assets or Capital Stock are included in such Asset Sale; provided that (A) the following Persons may make a purchase or investment in accordance with the foregoing: (x) the Company, (y) a Wholly Owned Subsidiary or (z) in the case of an Asset Sale in respect of assets or Capital Stock held by a Restricted Subsidiary only, a Restricted Subsidiary of which the Company, owns directly or indirectly, an equal or greater percentage of the economic and voting interests of its Capital Stock as it does of the Restricted Subsidiary that made such Asset Sale and (B) no purchase from the Company or any Restricted Subsidiary will satisfy the provisions of this clause (2) (each, other than the Company, a “Permitted Investing Subsidiary”); provided that (x) in the case of clause (2) above, a binding commitment shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment so long as the Company, or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 90 days of such commitment (an “Acceptable Commitment”) and such Net Cash Proceeds are actually applied to satisfy such commitment within the later of (i) 360 days after receipt of the Net Cash Proceeds from the related Asset Disposition Sale and (ii) 90 days after the date of such period, the “Application Period”), unless binding commitment and (y) to the extent such Net Available Cash is otherwise used Proceeds are not actually applied to satisfy such commitment within the period set forth in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a)x) above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount Net Cash Proceeds not so prepaid, repaid or purchased, orapplied shall constitute Excess Proceeds.
(iic) to To the extent the Company all or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance a portion of the Net Available Cash after application Proceeds of any Asset Sale are not applied within 360 days thereof (or such longer period as permitted pursuant to an Acceptable Commitment as provided in accordance with Section 3.12(b) above) as described in clause (a1) or (2) of Section 3.12(b) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward will make an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an “Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15Sale Offer”), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to at a purchase such Senior 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes to be purchased, plus accrued and unpaid interest thereon, to the date of purchasepurchase (the “Asset Sale Offer Amount”). The Company will purchase pursuant to an Asset Sale Offer from all tendering Holders on a pro rata basis in the manner provided in Section 5.5, and, at the Company’s option, on a pro rata basis with the holders of any other Senior Indebtedness with similar provisions requiring the Company to offer to purchase the other Senior Indebtedness with the proceeds of Asset Sales, that principal amount (or accreted value in the case of Indebtedness issued with original issue discount) of Notes and the other Senior Indebtedness to be purchased equal to such unapplied Net Cash Proceeds. The Company may satisfy its Obligations under this Section 3.12 with respect to any Net Cash Proceeds by making an Asset Sale Offer prior to the expiration of 360 days from the relevant Asset Sale (or, in the event an Acceptable Commitment has been entered into as set forth in Section 3.12(b) above, the later date of the 360th day following the Asset Sale or the expiration of the 90-day period set forth in Section 3.12(b) above).
(d) The purchase of Notes pursuant to an Asset Sale Offer will occur not less than 20 Business Days following the date thereof, or any longer period as may be required by law, nor more than 45 days following the 360th day following the Asset Sale (or, in the event an Acceptable Commitment has been entered into as set forth in Section 3.12(b), the later date of the 360th day following the Asset Sale or the expiration of the 90-day period set forth in such Section 3.12(b)). The Company may, however, defer an Asset Sale Offer until there is an aggregate amount of unapplied Net Cash Proceeds from one or more Asset Sales equal to or in excess of $15.0 million. At that time, the entire amount of unapplied Net Cash Proceeds, and not just the amount in excess of $15.0 million, will be applied as required pursuant to this Section 3.12. Pending application in accordance with this Section 3.12, Net Cash Proceeds may be applied to reduce revolving credit borrowings, Invested in Cash Equivalents or used for general corporate purposes.
(e) Each Asset Sale Offer Notice will be mailed first class, postage prepaid, to the procedures record Holders as shown on the register of Holders within 30 days following such 360th day (or, in the event an Acceptable Commitment has been entered into as set forth herein in Section 3.12(b) above, the later date of the 360th day following the Asset Sale or the agreements governing expiration of the Pari Passu Notes90-day period set forth in such Section 3.12(b)), with a copy to the Trustee offering to purchase the Notes as applicabledescribed above. Each Asset Sale Offer Notice will state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date the notice is mailed, other than as may be required by law (the “Asset Sale Offer Payment Date”). Upon receiving notice of an Asset Sale Offer, Holders may elect to tender their Notes in each case whole or in part in a principal amount of $2,000 or integral multiples of $1,000 in principal amount excess thereof in exchange for cash.
(provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amountf) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of On the Asset Disposition Sale Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 Company will, to the extent lawful, :
(1) accept for paymentpayment all Notes or portions thereof properly tendered pursuant to the Asset Sale Offer;
(2) deposit with the Paying Agent funds in an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Company.
(g) To the extent Holders of Notes and holders of other Senior Indebtedness, if any, which are the subject of an Asset Sale Offer properly tender and do not withdraw Notes or the other Senior Indebtedness in an aggregate amount exceeding the amount of unapplied Net Cash Proceeds, the Company will purchase the Notes and the other Senior Indebtedness on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount (based on amounts tendered). If only a portion of Notes and Pari Passu Notes or portions of such Notes and Pari Passu Notes so validly tendered and not properly withdrawn a Note is purchased pursuant to the an Asset Disposition Sale Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased the portion thereof not purchased will be issued in the name of the Holder thereof upon cancellation of the original Note surrendered; provided that each such new (or appropriate adjustments to the principal amount of a global Note will be in a principal made, as appropriate). Notes (or portions thereof) purchased pursuant to an Asset Sale Offer will be cancelled and cannot be reissued. Upon completion of an Asset Sale Offer, the amount of $2,000 or Net Cash Proceeds will be reset at zero. Accordingly, to the extent that the aggregate amount of Notes and other Indebtedness tendered pursuant to an integral multiple Asset Sale Offer is less than the aggregate amount of $1,000 in excess thereof. In additionunapplied Net Cash Proceeds, the Company will take may use 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets remaining Net Cash Proceeds for general corporate purposes of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. Subsidiaries.
(h) The Company will comply, to the extent applicable, comply with the requirements of Rule 14(e) of 14e-1 under the Exchange Act and any other applicable securities laws or regulations in connection with the repurchase purchase of Notes pursuant to this Section 4.15an Asset Sale Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with provisions of this Section 4.153.12, the Company will comply with the applicable securities these laws and regulations and will not be deemed to have breached its obligations under this Indenture Section 3.12 by virtue of any conflictdoing so.
Appears in 1 contract
Sources: Indenture (MDC Partners Inc)
Limitation on Sales of Assets and Subsidiary Stock. The Company will not, and will not permit any of its Restricted Subsidiaries to, make any consummate an Asset Disposition Sale unless:
(1) the Company (or such a Restricted Subsidiary, as the case may be, ) receives consideration (both cash and non cash) at the time of the Asset Sale at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on measured as of the date of contractually agreeing the definitive agreement with respect to such Asset DispositionSale) of the shares and assets subject to such Asset Disposition;or equity interests issued or sold or otherwise disposed of; and
(2) at least 75% of the aggregate consideration from such received in the Asset Disposition received Sale by the Company or such a Restricted Subsidiary, as Subsidiary and all other Asset Sales since the case may be, Issue Date is in the form of cash or Cash Equivalents or Replacement AssetsEquivalents. For purposes of this clause (2)provision, each of the following shall will be deemed to be cash:
(a) any liabilities (liabilities, as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent consolidated balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligationsliabilities that are by their terms subordinated in right of payment to the Notes or any Note Guarantee) that are assumed by the transferee or that are otherwise cancelled, forgiven or terminated in connection with the transaction with such transferee;
(b) with respect to any Asset Sale of oil and natural gas properties by the Company or any such assets pursuant to a customary novation agreement that releases Restricted Subsidiary where the Company or such Restricted Subsidiary from further liabilityretains an interest in such property, costs and expenses related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(bc) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are are, within 180 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cash (cash, to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(cd) any Capital Stock or assets of the kind referred to in clause (2) or (4) of the next paragraph; and
(e) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in such Asset Disposition Sale having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (c) that is at that time outstandinge), not to exceed $100.0 million an amount equal to 5.0% of the Company’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 Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (3or any Restricted Subsidiary) may apply an amount equal to 100% such Net Proceeds at its option to any combination of the Net Available Cash from such Asset Dispositionfollowing:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i1) to the extent the Company repay, repurchase or redeem any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from of the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, thatCompany, in connection with any prepaymenteach case, repayment or purchase other than Subordinated Indebtedness of any such Indebtedness pursuant to this clause (a), the Company or any Guarantor;
(2) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary will retire such Indebtedness and will cause of the related commitment Company;
(if any3) to be permanently reduced make capital expenditures in an amount equal to respect of the principal amount so prepaid, repaid Company’s or purchased, any Restricted Subsidiaries’ Oil and Gas Business; or
(ii4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the extent the Company Oil and Gas Business. The requirement of clause (2) or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b4) second, to the extent of the balance of immediately preceding paragraph shall be deemed to be satisfied if a bona fide binding contract committing to make the Net Available Cash after application in accordance with (a) above (such balanceinvestment, “Excess Proceeds”), acquisition or expenditure referred to therein is applied entered into by the Company or such any of its Restricted Subsidiary, as Subsidiaries within the case may be, toward an offer to purchase Notes as set forth time period specified in the next succeeding paragraph; provided, however, that pending preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) aboveProceeds, the Company and its (or any Restricted Subsidiaries Subsidiary) may temporarily reduce Indebtedness or otherwise invest such the Net Available Cash Proceeds in any manner that is not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that The amount equal to the Net Available Cash will Proceeds from Asset Sales that are not be applied or invested as provided in accordance with clause (3)(a) of the first second paragraph of this Section 4.15), if 3.5 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $50.0 25.0 million, within five days thereof, the Company will be required to make an offer (an “Asset Disposition Sale Offer”) to all Holders of the Notes and, to the extent required by the terms of other Senior Indebtedness, to and all holders of other Senior Indebtedness outstanding that is pari passu with the Notes containing provisions similar provisions requiring the Company to make an offer those set forth in this Indenture with respect to purchase such Senior Indebtedness offers to purchase, prepay or redeem with the proceeds from any Asset Disposition (“Pari Passu Notes”) of sales of assets to purchase purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and any such Pari Passu Notes to which other pari passu Indebtedness (plus all accrued interest on the Asset Disposition Offer applies Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased purchased, prepaid or redeemed out of the Excess Proceeds, at . The Company may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds or equivalent amount prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Proceeds (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”). The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount of the Notes and Pari Passu Notes amount, plus accrued and unpaid interest to interest, if any, to, but excluding, the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in accordance with the procedures set forth herein cash. If any Excess Proceeds (or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notesan Advance Offer, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount Advance Portion) remain after consummation of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess ProceedsSale Offer, the Company or any Restricted Subsidiary may use any remaining those Excess Proceeds (or Advance Portion) for general corporate purposes, subject to other covenants contained in any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an in such Asset Disposition Sale Offer exceeds the amount of Excess ProceedsProceeds (or in the case of an Advance Offer, the Advance Portion) allocated to the purchase of Notes, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (except that any Notes in global form will be selected by such method as DTC or its nominee or successor may require unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,0002,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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.be
Appears in 1 contract
Sources: Indenture (Earthstone Energy Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cashincluding 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 not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;,
(2) at least 75% of the consideration from such Asset Disposition thereof received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash cash, assets useful in a Permitted Business, or Cash Equivalents or Replacement Assets. For purposes the assumption by the purchaser of this clause (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by their terms subordinated to the transferee Notes) as a result of which the Company and the Restricted Subsidiaries are no longer obligated with respect to those liabilities; provided that the amount of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition shall be deemed to be cash for the purposes of this provision (but for no other purpose) so long as such amount, taken together with the Fair Market Value when received of all other Designated Noncash Consideration that is at that time outstanding (i.e., that has not been sold for or otherwise converted into cash or Permitted Securities), does not exceed the greater of (i) $150,000,000 and (ii) 6% of Consolidated Tangible Assets as of the last day of the most recent fiscal quarter; provided, further, that (A) securities or other assets received by the Company or any Restricted Subsidiary from such the transferee that are converted by the Company or such Restricted Subsidiary into cash (within 180 days after the closing of such Asset Disposition shall be considered to be cash to the extent of the cash received in that conversion; and (B) within 180 days any cash consideration paid to the Company or the Restricted Subsidiary in connection with the Asset Disposition that is held in escrow or on deposit to support indemnification, adjustment of the closing purchase price or similar obligations in respect of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)shall be considered to be cash, taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset DispositionDisposition is applied by the Company (or such Restricted Subsidiary, as the case may be) within 365 days after the later of the date of such Asset Disposition and the receipt of such Net Available Cash:
(aA) firstto prepay, repay, purchase, repurchase, redeem, retire, defease or otherwise acquire for value Secured Indebtedness of the Company or a Subsidiary Guarantor (other than any Disqualified Stock or Subordinated Obligations) or Indebtedness of a Restricted Subsidiary that is applied not a Subsidiary Guarantor, in each case other than Indebtedness owed to the Company or an Affiliate of the Company;
(B) 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); provided, that a binding commitment to apply Net Available Cash in accordance with this clause (B) shall be treated as an application of such Net Available Cash from the date of such commitment if (i) such reinvestment is consummated within 180 days at the end of such 365 day period referred to in this clause (3) and (ii) if such reinvestment is not consummated within the period set forth in subclause (i) or such binding commitment is terminated, the Net Available Cash shall constitute available Net Available Cash; or
(C) (i) to redeem the Notes or make open market purchases thereof at a price not less than 100% of the principal amount thereof or (ii) to make an Asset Disposition Offer to purchase Notes pursuant to and subject to the conditions set forth in Section 4.10(b); provided, however, that if the Company elects (or is required by the terms of any Pari Passu Indebtedness), such Asset Disposition Offer may be made ratably (determined based upon the respective principal amounts of the Notes and such Pari Passu Indebtedness being purchased or repaid) to purchase the Notes and to purchase or otherwise repay such Pari Passu Indebtedness; provided that pending final application of any such Net Available Cash in accordance with clause (3)(A), (B) or (C) above, the Company and the Restricted Subsidiaries may temporarily reduce revolving Indebtedness outstanding under the Existing Credit Agreement or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. To the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) above, the Company or such Restricted Subsidiary, as the case may be,
, may use such balance for any general corporate purpose not prohibited by the terms of this Indenture. In connection with any prepayment, repayment, purchase, repurchase, redemption, retirement, defeasance or other acquisition for value of Indebtedness pursuant to clause (iA) to the extent or (C) above, the Company or any such Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), 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 repaid, purchased, or
(ii) to repurchased, redeemed, retired, defeased or otherwise acquired for value. Notwithstanding the extent foregoing provisions of this Section 4.10, the Company or such and the Restricted Subsidiary elects, Subsidiaries will not be required to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of apply any such Net Available Cash in accordance with clause (a) or clause (b) above, this covenant except to the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such extent that the aggregate Net Available Cash in any manner from all Asset Dispositions that is not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds covenant exceeds $50.0 million100,000,000.
(b) In the event of an Asset Disposition that requires the purchase of Notes pursuant to Section 4.10(a)(3)(C), the Company will be required required
(i) to make purchase Notes tendered pursuant to an offer by the Company for the Notes (the “Asset Disposition Offer”) at a purchase price of 100% of their principal amount plus accrued and unpaid interest thereon to all the date of purchase (subject to the right of Holders of Notes record on the relevant date to receive interest due on the relevant Interest Payment Date) in accordance with the procedures, including prorating in the event of oversubscription, set forth in this Indenture, and,
(ii) to purchase or otherwise repay Pari Passu Indebtedness of the Company on the terms and to the extent required by contemplated thereby at the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring purchase price set forth in the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any Asset Disposition relevant documentation (“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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus including accrued and unpaid interest to the date of purchaseacquisition, in accordance with the procedures set forth herein or “purchase price”), provided that to the agreements governing extent the purchase price of any such Pari Passu Notes, as applicable, in each case in integral multiples Indebtedness exceeds 100% of $1,000 in the principal amount (provided that thereof, plus accrued and unpaid interest thereon to the unpurchased portion date of any Note acquisition, the Company shall not be less than $2,000 in principal amount) oruse any Net Available Cash to pay such purchase price, in except as permitted by the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notesnext sentence. To the extent that If the aggregate amount purchase price of Notes and Pari Passu Notes so validly Indebtedness tendered and not properly withdrawn pursuant to an the Asset Disposition Offer is less than the Excess Proceeds, Net Available Cash allotted to the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If purchase of the aggregate principal amount of Notes and Pari Passu Notes validly tendered and Indebtedness, the Company will apply the remaining Net Available Cash for any general corporate purpose not properly withdrawn pursuant prohibited by the terms of this Indenture. The Company will not be required to make an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered for Notes and Pari Passu NotesIndebtedness pursuant to this Section 4.10 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 4.10(a)(3)(A) and (B)) is less than $100,000,000 for any particular Asset Disposition (which lesser amount will be carried forward for purposes of determining whether an Asset Disposition Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon completion consummation of such any Asset Disposition Offer, the amount Net Available Cash in respect of Excess Proceeds any Asset Disposition(s) shall be reset at reduced to zero. Each Asset Disposition Offer will remain open for a period of .
(c) (i) Promptly, and in any event within 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required becomes obligated to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of make an Asset Disposition Offer, the Company shall send, by first class mail, a notice be obligated to deliver to the Trustee and send or, at the request of the Company have the Trustee send (such notice to be provided to the Trustee at least five Business Days before the Trustee is requested to send such notice unless a shorter period shall be satisfactory to the Trustee), in the name and on behalf of the Company, by first-class mail to each Holder, or in the case of Global Notes, send in accordance with the Applicable Procedures of the Depositary, a written notice stating that the Holder may elect to have its Notes purchased by the Company either in whole or in part (subject to prorating as hereinafter described in the event the Asset Disposition Offer is oversubscribed) in minimum denominations of $2,000 of principal amount or any greater integral multiple of $1,000 thereof, at its registered addressthe applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the “Purchase Date”) and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum shall include (1) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports); provided that in lieu of providing the reports specified in this subclause (1), the Company may, at its option, notify the holders that such reports are available to them in electronic format through the SEC’s ▇▇▇▇▇ system, (2) a description of material developments in the Company’s business subsequent to the date of the latest of such reports, and (3) if material, appropriate pro forma financial information) and all instructions and materials necessary to 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, together with the form entitled “Option of Holder address referred to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
clause (7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchasediii);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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 (Qorvo, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition of any Collateral unless:
(1) the Company or such Restricted SubsidiarySubsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the case may beBoard of Directors, receives consideration (both cash and non cash) equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration from such Asset Disposition thereof received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value)equivalents; and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is paid directly by the purchaser thereof to the Collateral Agent or the Trustee to be held in trust and applied by the Company (or such Restricted Subsidiary, as the case may be,) at the Company's election either
(iA) to acquire Additional Assets, which Additional Assets are concurrently with their acquisition added to the extent Collateral securing the Securities, or
(B) to make an offer to the holders of the Securities to purchase Securities pursuant to and subject to the conditions contained in this Indenture, in each case within three months from the later of the date of such Asset Disposition or the receipt of such Net Available Cash.
(b) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition (other than an Asset Disposition of Collateral) unless:
(1) the Company or any such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents; and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be, )
(A) to the extent the Company elects (or is required by the terms of any Bank Indebtedness), to prepay, repay repay, redeem or purchase such Bank Senior Indebtedness of the Company or Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 365 days one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(such period, the “Application Period”), unless B) to the extent the Company elects, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; or
(C) to the extent of the balance of such Net Available Cash is otherwise used after application in accordance with clause (iior upon election not to utilize) clauses (A) or (B) of this section 4.06(b)(3), to make an offer to the holders of the Securities (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture; provided, however, that, that in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (aA) or (C) of this Section 4.06(b), the Company or such Restricted Subsidiary will shall permanently retire such Indebtedness and will 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, or.
(iic) to Notwithstanding the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
foregoing provisions of paragraphs (a) and (b) secondof this Section 4.06, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such and the Restricted Subsidiary, as the case may be, toward an offer Subsidiaries shall not be required to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of apply any such Net Available Cash in accordance with clause (a) or clause (b) abovethose paragraphs except to the extent that the aggregate Net Available Cash from all Asset Dispositions subject to those paragraphs which is not applied in accordance with those paragraphs exceeds $5.0 million. Pending application of Net Available Cash pursuant to this Section 4.06, the Company and its 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 revolving credit indebtedness.
(d) For the purposes of this Section 4.06, the following are deemed to be cash or cash equivalents:
(1) the assumption of Indebtedness of the Company (other than obligations in respect of Disqualified Stock of the Company) or any manner not prohibited by this Indenture. On Restricted Subsidiary (other than obligations in respect of Disqualified Stock or Preferred Stock of a Subsidiary Guarantor) and the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors release of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied from all liability on such Indebtedness in accordance connection with clause such Asset Disposition; and
(3)(a2) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, securities received by the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes andor any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash, to the extent required of cash received in that conversion.
(e) In the event of an Asset Disposition that results in an offer to purchase Securities (and any other Senior Indebtedness of the Company) pursuant to clause (a)(3)(B) or (b)(3)(C) of this Section 4.06, the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof) without premium, plus accrued but unpaid interest (or, in respect of such other Senior Indebtedness of the Company, such lesser price, if any, as may be provided for by the terms of other such Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures (including prorating in the event of oversubscription) set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this IndentureSection 4.06(f). If the aggregate principal amount purchase price of Notes and Pari Passu Notes validly the securities tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess ProceedsNet Available Cash allotted to their purchase, the Trustee Company shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes securities to be purchased on a pro rata basis on but in round denominations, which in the basis case of the aggregate Securities will be denominations of $1,000 principal amount of such tendered Notes and Pari Passu Notesor multiples thereof. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except an offer to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination purchase Securities and any other Senior Indebtedness of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 4.06, Net Available Cash shall be deemed to be reduced by the aggregate amount of such offer and any then remaining Net Available Cash following such offer may be used by the Company for any purpose not prohibited by this Indenture.
(1) Promptly, and in any event within 10 days after the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response Company becomes obligated to the Asset Disposition Offer. Upon the commencement of make an Asset Disposition Offer, the Company shall send, by first class mail, a notice deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(e) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at its registered addressthe applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to enable such Holder to tender Notes Securities pursuant to the Asset Disposition Offer. Any Asset Disposition , together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall be made deliver to all Holders. The notice, which shall govern the terms Trustee an Officers' Certificate as to (A) the amount of the Asset Disposition Offer (the "Offer Amount"), including information as to any other Senior Indebtedness included in the Offer, shall state:
(1B) that the allocation of the Net Available Cash from the Asset Disposition Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) or (b), as applicable. On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;4.06.
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note Security purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the NoteSecurity, with the an appropriate form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes duly completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent Company at the address specified in the notice at least three days before Business Days prior to the Asset Disposition Purchase Date;
(7) that . Holders shall be entitled to withdraw their election if the Company, the Depository Trustee or the Paying Agent, as the case may be, receives, Company receives not later than the second business day one Business Day prior to the Asset Disposition Purchase Date, a notice telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note Security purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) that . Holders whose Notes were Securities are purchased only in part shall be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer); andSecurities surrendered.
(104) all other procedures, if any, determined by At the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in time the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid Company delivers Securities to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will Trustee which are to be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Dateaccepted for purchase, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will also deliver to the Trustee an Officers’ ' Certificate stating that such Notes or portions thereof were Securities are to be accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.15 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu NotesSection. 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company A Security shall be deemed to have sold been accepted for purchase at the properties and assets of time the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15Trustee, and shall comply with directly or through an agent, mails or delivers payment therefor to the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. surrendering Holder.
(g) The Company will shall comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes Securities pursuant to this Section 4.15Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15Section, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Indenture Section by virtue of any conflictits compliance with such securities laws or regulations.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, make any consummate an Asset Disposition unlessSale:
(1) the Company Issuer (or such the Restricted Subsidiary, as the case may be, ) receives consideration (both cash and non cash) at the time of the Asset Sale at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on as of the date of contractually agreeing contractual agreement to such Asset DispositionSale) of the shares and assets subject to such Asset Dispositionor Equity Interests issued or sold or otherwise disposed of;
(2) in the case of an Asset Sale of Collateral, the consideration from such Asset Sale is pledged as Collateral to secure the Notes (to the extent required by the Notes Collateral Documents), at least until such time it is otherwise applied in accordance with this Section 3.5; and
(3) at least 75% of the consideration from such received in the Asset Disposition received Sale by the Company Issuer or such any of its Restricted Subsidiary, as the case may be, Subsidiaries is in the form of cash or cash, Cash Equivalents or Replacement Assets. For purposes of this clause (2)provision, each of the following shall will be deemed to be cash:
(ai) any liabilities (Indebtedness or liabilities, as shown on the face of the CompanyIssuer’s or such Restricted Subsidiary’s then 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 most recent 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), of the Company Issuer or any of its Restricted Subsidiary Subsidiaries (other than contingent liabilities and Subordinated Obligationsliabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases and for which the Company Issuer or such Restricted Subsidiary from further liabilityhas been released in writing;
(bii) any securities, notes or other obligations received by the Company Issuer or any such Restricted Subsidiary from such transferee that are converted by the Company Issuer or such Restricted Subsidiary into cash (or Cash Equivalents within 180 days of the receipt thereof, to the extent of the cash or Cash Equivalents received in that conversion;
(iii) within 180 days any stock or assets of the closing kind referred to in clauses (2) or (4) of such Asset Dispositionthe succeeding paragraph of this Section 3.5; and
(civ) any Designated Noncash Non-cash Consideration received by the Company Issuer or any such Restricted Subsidiary in such Asset Disposition Sale having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured determined as of the date of contractual agreement to such Asset Sale) taken together with all other Designated Non-cash Consideration received pursuant to this clause (d) that is at that time outstanding not to exceed the time received without giving effect to subsequent changes in value); andgreater of $10.0 million and 15.0% of Consolidated EBITDA of the Issuer and its Restricted Subsidiaries for the most recently ended four fiscal quarters for which internal financial statements are available.
(3b) Within 450 days after the receipt of any Net Proceeds from an Asset Sale, the Issuer or one or more of its Restricted Subsidiaries may apply an amount equal to 100% such Net Proceeds at its option to any combination of the Net Available Cash from such Asset Dispositionfollowing:
(a1) first, is applied by the Company or (x) if assets subject to such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness)Asset Sale constitute Collateral, to prepay, repay or purchase (i) Indebtedness and other Obligations under the ABL Credit Agreement (or any Permitted Refinancing Indebtedness in respect thereof), (ii) Obligations in respect of the Notes, (iii) Obligations in respect of Indebtedness that is pari passu with the Notes or (iv) Indebtedness that is secured by the assets which are the subject of such Bank Asset Sale and (y) if assets subject to such Asset Sale do not constitute Collateral, to prepay, repay or purchase Senior Indebtedness of the Company Issuer or any of a its Restricted Subsidiary within 365 days from the date of such Asset Disposition Subsidiaries (such period, the “Application Period”), unless other than Indebtedness owed to the extent such Net Available Cash is otherwise used in accordance with clause (iiIssuer or another Restricted Subsidiary); provided, however, that, provided that in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a1), the Company Issuer or any such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if anyother than obligations in respect of any asset-based credit facility (including Indebtedness under the ABL Credit Agreement or any Refinancing Indebtedness in respect thereof) to the extent the assets sold or otherwise disposed of in connection with such Asset Sale constituted “borrowing base assets”) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; provided further that in connection with any prepayment, orrepayment or purchase of Indebtedness other than Obligations in respect of the Notes pursuant to clause (1)(x)(iii) or (iv) or (1)(y), the Issuer shall also equally and ratably reduce Indebtedness under the Notes by making an offer (an “Asset Sale Offer”) (in accordance with the procedures set forth below for an Asset Sale Offer with Excess Proceeds) to all Holders to purchase, on a pro rata basis (subject to adjustments to maintain the authorized denominations for the Notes), the principal amount of Notes, in each case, at a purchase price equal to 100% of the principal amount (or accreted value, as applicable) plus accrued and unpaid interest, if any, to, but excluding, the date of purchase;
(ii2) to acquire all or substantially all of the extent assets of, a division or line of business of or a majority of the Company Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or such becomes a Restricted Subsidiary electsof the Issuer;
(3) to make a capital expenditure or other expenditures in connection with the construction, operation, maintenance, repair or improvement of existing properties and assets;
(4) to acquire or invest in Replacement Assets within the applicable Application Periodor acquire long-term assets in another Permitted Business; andor
(b5) secondany combination of the foregoing; provided that in the case of clauses (2), (3) and (4) above, (i) any such acquisition, expenditure or investment in accordance with such clause may be made by means of an acquisition, expenditure or investment by a Restricted Subsidiary in an amount equal to the Net Proceeds received by the Issuer or another Restricted Subsidiary, (ii) if the Issuer or any Restricted Subsidiary enters into a binding commitment within such 450 day period, such binding commitment shall be treated as a permitted application of the Net Proceeds from such Asset Sale if an amount equal to such Net Proceeds is applied within 180 days of the end of the 450 day period (provided further that if such commitment is later terminated or canceled before such Net Proceeds are applied and the Issuer or any Restricted Subsidiary enters into another binding commitment (the “Second Commitment”) within 180 days of such cancellation or termination (or, if later, 450 days from the receipt of such Net Proceeds), such Second Commitment shall be treated as a binding commitment; provided further that if any Second Commitment is later terminated or canceled before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds if not otherwise applied as provided above within 450 days of the receipt of such Net Proceeds), (iii) if assets subject to such Asset Sale constitute Collateral, any assets acquired or investment described in clauses (2) and (4) above shall be pledged as Collateral to secure the Notes to the extent of required by the balance of Notes Collateral Documents (and pursuant to the Net Available Cash after application terms thereof) and (iv) if assets subject to such Asset Sale constitute Collateral, any such assets underlying any expenditure described in accordance with clause (a3) above (such balance, “Excess Proceeds”), is applied shall be pledged as Collateral to secure the Notes to the extent required by the Company or such Restricted Subsidiary, as Notes Collateral Documents (and pursuant to the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending terms thereof).
(c) Pending the final application of the amount of any such Net Available Cash in accordance with clause (a) or clause (b) aboveProceeds, the Company and Issuer or any of its Restricted Subsidiaries may temporarily reduce Indebtedness revolving credit borrowings or otherwise invest such apply the Net Available Cash Proceeds in any manner that is not prohibited by this Indenture. On Holders of Notes may not have control of, or a perfected security interest in the 366th day after an Asset Disposition (or such earlier dateNet Proceeds, if any, as which could diminish the Board of Directors value of the Company Collateral.
(d) The amount of any Net Proceeds from Asset Sales that is not applied or such Restricted Subsidiary determines that the Net Available Cash invested as described above will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $50.0 15.0 million, within 30 days thereof, unless waived or modified with the Company consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding, the Issuer will be required to make an offer (“Asset Disposition Offer”) Sale Offer to all Holders of Notes and, (with a copy to the extent required by the terms of other Senior Indebtedness, to Trustee) and all holders of other Senior Indebtedness outstanding that is pari passu with the Notes containing provisions similar provisions requiring the Company to make an offer those set forth in this Indenture with respect to offers to purchase or redeem such Senior Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) of sales of assets to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies other pari passu Indebtedness that may be purchased out of the Excess Proceeds, at an . The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount of the Notes and Pari Passu Notes being purchased, plus accrued and unpaid interest interest, if any, to but excluding, the date of purchase, and will be payable in accordance cash. The Issuer may satisfy the foregoing obligation with the procedures set forth herein respect to such Net Proceeds from Asset Sales by making an Asset Sale Offer with respect to all or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased a portion of the available Net Proceeds (the “Advance Portion”) in advance of being required to do so by this Indenture (the “Advance Offer”). If any Note shall not be less than $2,000 in principal amount) Excess Proceeds (or, in the case of Pari Passu Notesan Advance Offer, the Advance Portion) remain after consummation of an Asset Sale Offer, the Issuer may use those Excess Proceeds (or, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount case of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess ProceedsAdvance Offer, the Company may use Advance Portion) for any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly other pari passu Indebtedness tendered and not properly withdrawn pursuant to an into such Asset Disposition Sale Offer exceeds the amount of Excess ProceedsProceeds (or, in the case of an Advance Offer, the Trustee shall Advance Portion), the Issuer will select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes other pari passu Indebtedness to be purchased on a pro rata basis (with such subject to adjustments as may to maintain the authorized denominations for the Notes). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);reset at zero.
(9e) that Holders whose Notes were purchased only The Issuer will comply in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will comply, to the extent applicable, material respects with the requirements of Rule 14(e) of 14e-1 under the Exchange Act and any other securities laws or and regulations thereunder to the extent those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to this Section 4.15an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Section 4.15Indenture, the Company Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of any conflictsuch compliance.
Appears in 1 contract
Sources: Indenture (CPI Card Group Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1i) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cashincluding 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 not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) fair market value of the shares and assets subject to such Asset Disposition;, as such fair market value may be determined (and shall be determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $10.0 million) in good faith by the Board of Directors, whose determination shall be conclusive (including as to the value of all noncash consideration),
(2ii) in the case of any Asset Disposition (or series of related Asset Dispositions) at least 75% of the consideration from such therefor (excluding, in the case of an Asset Disposition (or series of related Asset Dispositions) of assets, any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, that are not Indebtedness) received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s cash, or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition Assets having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)fair market value, taken together with all other Designated Noncash Consideration Assets received in consideration for Asset Dispositions pursuant to this clause (cb) that is are at that the time outstanding, not to exceed the greater of (x) 5% of Consolidated Tangible Assets and (y) $100.0 35.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value)of receipt of such Designated Noncash Assets; and
(3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 statefollows:
(1) that the Asset Disposition Offer is being made pursuant to this Section 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of any conflict.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition unless:
unless (1x) the Company or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company Issuer or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by receives consideration at the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing time of such Asset Disposition; and
Disposition at least equal to the fair market value (c) any Designated Noncash Consideration received by including as to the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (value of all non-cash consideration), as determined in good faith by the Board of Directors or an Officer of the Company)Issuer, taken together with all other Designated Noncash Consideration received pursuant of the shares and/or assets subject to this clause such Asset Disposition, (cy) that if the subject of the Asset Disposition consists of Aircraft, Airframes, Engines or Parts (each such term, as defined in the Aircraft Mortgage) and if any non-cash consideration is at that time outstanding, not subject to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured a Lien at the time of acquisition thereof, the fair market value of such non-cash consideration, plus the amount of any consideration in the form of cash or Cash Equivalents, less the amount of all obligations secured by such Lien, is greater than the fair market value of such Aircraft, Airframe, Engine and/or Part subject to the Asset Disposition and (z) (A) at least eighty percent (80%) of the consideration thereof received without giving effect by the Issuer or such Restricted Subsidiary is in the form of cash or Cash Equivalents, or (B) if the subject of the Asset Disposition consists of Aircraft, Airframes, Engines or Parts, and if at least eighty percent (80%) of the consideration thereof received by the Issuer or such Restricted Subsidiary is not in the form of cash or Cash Equivalents, the Issuer or such Restricted Subsidiary has subjected to subsequent changes the Lien of the Aircraft Mortgage any aircraft, aircraft engines or other flight equipment acquired in value); and
exchange (3"Exchanged Flight ---------------- Equipment") for the Aircraft, Airframe, Engine or Parts subject to such --------- Asset Disposition unless any lien or encumbrance existing on the Exchanged Flight Equipment at the time of acquisition thereof and to which the Issuer or such Restricted Subsidiary takes subject to prohibits the Issuer or such Restricted Subsidiary from subjecting the Exchanged Flight Equipment to the Lien of the Aircraft Mortgage. In the event the Issuer subjects to the Lien of the Aircraft Mortgage any Exchanged Flight Equipment, the Lien of the Aircraft Mortgage shall constitute a first priority security interest in such Exchanged Flight Equipment unless the Issuer acquires the Exchanged Flight Equipment subject to a prior lien, in which event, the Lien of the Aircraft Mortgage shall be junior only to such prior lien . If the Issuer or any Restricted Subsidiary engages in an amount equal to 100% of Asset Disposition, the Issuer may use the Net Available Cash from such Asset Disposition:
, within one (a1) firstyear after the later of such Asset Disposition and the receipt of such Net Available Cash (such later date, is applied by the Company or such Restricted Subsidiary"Trigger Date"), as the case may be,
to (i) to permanently ------------ repay or prepay any then outstanding Senior Indebtedness of the extent the Company Issuer or any Restricted Subsidiary, as the case may be, elects Subsidiary or (ii) invest in or acquire (or is required by enter into a legally binding commitment to invest in or acquire) Additional Assets; provided that the terms of transaction subject to any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary commitment be consummated -------- within 365 one hundred eighty (180) days from after the date of such Asset Disposition commitment. If any such legally binding commitment to invest in or acquire such 61 Additional Assets is terminated, then the Issuer may, within ninety (90) days of such periodtermination or the Trigger Date, the “Application Period”)whichever is later, unless to the extent use such Net Available Cash is otherwise used as provided in accordance with clause (i) or (ii) (without giving effect to the parenthetical contained in such clause (ii); provided, however, that, ) above. The amount of such Net Cash Proceeds not so used as set forth above in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; andparagraph constitutes "Excess Proceeds." ---------------
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if When the aggregate amount of Excess Proceeds exceeds $50.0 millionthe Asset Disposition Basket, the Company will be required Issuer shall, within thirty (30) days thereof, apply all such Excess Proceeds
(1) first, to make an offer Offer to Purchase outstanding Notes at one hundred percent (“Asset Disposition Offer”100%) of their principal amount plus accrued and unpaid interest and Special Interest, if any, thereon to all Holders of Notes the Purchase Date and, to the extent required by the terms thereof, any other Indebtedness of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness Issuer that is pari passu with the proceeds from any Asset Disposition Notes at a price no greater than one hundred percent (“Pari Passu Notes”100%) to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes thereof plus accrued and unpaid interest to the date of purchasepurchase and (2) second, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To to the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposesfollowing the completion of the Offer to Purchase, subject to any other covenants contained in this use as determined by the Issuer which is not otherwise prohibited by the Indenture. If Upon the aggregate principal amount completion of Notes and Pari Passu Notes validly tendered and not properly withdrawn an Offer to Purchase pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offerthis paragraph (b), the amount of Excess Proceeds shall be reset at to zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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 (Airtran Holdings Inc)
Limitation on Sales of Assets and Subsidiary Stock. The Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), ) to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such any Restricted Subsidiary Subsidiary, as the case may be, elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (an “Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee Trustee, in accordance with (in the case of Global Notes) the applicable procedures of the Depository, shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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.Section
Appears in 1 contract
Sources: Indenture (Southwest Atlanta Dialysis Centers, LLC)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will Issuer shall not, and will shall not permit any of its the Restricted Subsidiaries to, make any consummate an Asset Disposition Disposition, unless:
(1) the Company Issuer or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) at the time of such Asset Disposition at least equal to not less than the Fair Market Value of the assets sold or otherwise disposed of (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on measured as of the date of contractually agreeing the definitive agreement with respect to such Asset Disposition) of the shares and assets subject to such Asset Disposition;); and
(2) at least 75% of the consideration from such Asset Disposition therefor received by the Company Issuer or such Restricted Subsidiary, as the case may bebe (which, for purposes of this clause (2), consideration will not include any contingent payment obligations related to such Asset Disposition, including, earn-out payments, purchase price adjustments and deferred purchase price payments), is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of Equivalents; provided that the following shall be deemed to be cashamount of:
(aA) any liabilities (liabilities, as shown on the face of the CompanyIssuer’s or such Restricted Subsidiary’s then most recent balance sheet)sheet or in the notes thereto, of the Company Issuer or any of its Restricted Subsidiary Subsidiaries (other than contingent liabilities and Subordinated Obligationsliabilities that are by their terms subordinated to the Notes) (i) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases assets, or (ii) in respect of which neither the Company or such Issuer nor any Restricted Subsidiary from further liabilityfollowing such Asset Disposition has any obligation;
(bB) any securities, notes securities or other obligations received by the Company Issuer or any such Restricted Subsidiary from such transferee that are converted by the Company Issuer or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash received in that conversionor Cash Equivalents received) within 180 days of following the closing of such Asset Disposition;
(C) any Capital Stock, properties or assets of the kind referred to in Section 4.11(b)(2);
(D) cash held in escrow as security for any purchase price settlement, for damages in respect of a breach of representations and warranties or covenants or for payment of other contingent obligations in connection with such Asset Disposition; and
(cE) any Designated Noncash Consideration received by the Company Issuer or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (cE) that is at that time outstanding, not to exceed the greater of (x) $100.0 20.0 million and (y) 2.0% of the Total Assets of the Issuer at the time of the receipt of such Designated Noncash Consideration, with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value); and, in each case, shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(3b) an amount equal to 100% Within 365 days after the receipt of the any Net Available Cash from such Proceeds of any Asset Disposition:
(a) first, is applied by the Company Issuer or such Restricted Subsidiary, as at its option, may apply the case may beNet Cash Proceeds from such Asset Disposition to one or more of the following, or any combination,
(i1) to reduce or repay:
(A) to permanently repay Secured Indebtedness or unsecured Senior Indebtedness of the Issuer or the Guarantors (or, in each case, make an offer to repurchase or redeem such Indebtedness; provided that such repurchase or redemption or offer for repurchase or redemption closes within 45 days after the end of such 365-day period); provided, that if such debt constitutes revolving Indebtedness, commitments for such revolving Indebtedness must be reduced by an amount equal to such repayment; or
(B) to the extent the Company property that is subject to such Asset Disposition was sold by a non-Guarantor Subsidiary, Indebtedness of a non-Guarantor Subsidiary, other than Indebtedness owed to the Issuer or any another Restricted Subsidiary, as ; or
(2) to make (A) an Investment in any one or more businesses; provided that such Investment in any business is in the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness form of the Company or acquisition of Capital Stock of a Restricted Subsidiary within 365 days from or results in the date Issuer or its Restricted Subsidiaries owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (B) capital expenditures in respect of the Issuer, its Restricted Subsidiaries or their respective assets or (C) acquisitions of other properties or assets to be held by the Issuer or its Restricted Subsidiaries (including assets that replace the business, properties and assets of the Issuer or any of its Restricted Subsidiaries that were the subject of such Asset Disposition (such period, the “Application Period”Disposition), unless in the case of each of (A), (B) and (C), used or useful in a Related Business; or
(3) to reduce or repay Obligations under the extent such Net Available Cash is otherwise used Notes in accordance with clause (ii); providedthe provision set forth under Section 3.07, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent through open market purchases of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company Notes or such Restricted Subsidiary, as the case may be, toward through an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds below for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indentureprovided, that a Holder must follow in order all Net Cash Proceeds used to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after make such an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid offer 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold been so applied whether or not accepted by the properties and assets Holders; provided that a binding commitment to apply Net Cash Proceeds as set forth in Section 4.11(b)(2) shall be treated as a permitted application of the Company and its Net Cash Proceeds from the date of such commitment so long as the Issuer or such Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply Subsidiary enters into such commitment with the provisions good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 180 days of this Section 4.15 with respect the end of such 365-day period (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Cash Proceeds are applied in connection therewith, then the Issuer or such Restricted Subsidiary shall be permitted to apply the Net Cash Proceeds in any manner set forth above before the expiration of such deemed sale 180-day period and, in the event the Issuer or such Restricted Subsidiary fails to do so, then such Net Cash Proceeds shall constitute Excess Proceeds (as if it were defined below).
(c) Any Net Cash Proceeds from an Asset Disposition. In addition, Disposition that are not invested or applied as provided and within the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall time period set forth in Section 4.11(b) will be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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.to
Appears in 1 contract
Sources: Indenture
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any consummate an Asset Disposition Disposition, unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) at the time of such Asset Disposition at least equal to not less than the Fair Market Value fair market value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be as determined on in good faith by an Officer of the date of contractually agreeing to such Asset DispositionCompany) of the shares and assets subject to such Asset Disposition;sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration from such Asset Disposition therefor received by the Company or such Restricted Subsidiary, as the case may bebe (which, for purposes of this clause (b), consideration will not include any contingent payment obligations related to such Asset Disposition, including, earn-out payments, purchase price adjustments and deferred purchase price payments), is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of Equivalents; provided that the following shall be deemed to be cashamount of:
(aA) any liabilities (as shown on the face Company’s or such Restricted Subsidiary’s most recent 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 shown on the Company’s or such Restricted Subsidiary’s then most recent 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 an Officer of the Company) of the Company or any such Restricted Subsidiary (Subsidiary, other than contingent liabilities that are by their terms subordinated to the Notes and Subordinated Obligations) the Note Guarantees, that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases and for which the Company or such and all of its Restricted Subsidiary from further liabilitySubsidiaries have been validly released in writing;
(bB) any securities, notes securities or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash received in that conversionor Cash Equivalents received) within 180 days of following the closing of such Asset Disposition;
(C) any Capital Stock, properties or assets of the kind referred to in clause (b) of the following paragraph; and
(cD) cash held in escrow as security for any Designated Noncash Consideration received by the Company purchase price settlement, for damages in respect of a breach of representations and warranties or any Restricted Subsidiary covenants or for payment of other contingent obligations in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together connection with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:, shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(ab) firstWithin 365 days after the receipt of any Net Cash Proceeds of any Asset Disposition (the “Application Period”), is applied by the Company or such Restricted Subsidiary, as at its option, may apply the case may beNet Cash Proceeds from such Asset Disposition to one or more of the following, or any combination,
(i1) to reduce or repay:
(A) First-Priority Lien Obligations;
(B) Obligations under Indebtedness (other than Subordinated Obligations) that is secured by a Lien, which Lien is permitted by this Indenture; or
(C) Indebtedness of a non-Guarantor Subsidiary, other than Indebtedness owed to the Company or another Restricted Subsidiary; or
(2) to make (1) an Investment in any one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock of a Restricted Subsidiary or results in the Company or another of its Restricted Subsidiaries owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (2) capital expenditures or (3) acquisitions of other properties or assets, in the case of each of (1), (2) and (3), used or useful in a Related Business; or
(3) to redeem Notes in accordance with Section 3.07 hereof, to make open market purchases of the Notes (to the extent such purchases are at or above 100% of the Company principal amount thereof), or any Restricted Subsidiaryto make an offer to purchase Notes (in accordance with the procedures set forth below for a Collateral Proceeds Offer or Asset Disposition Offer, as the case may be); provided, elects that all Net Cash Proceeds used to make such an offer to purchase shall be deemed to have been so applied whether or not accepted by the Holders.
(c) Any Net Cash Proceeds from an Asset Disposition of Collateral that are not invested or is applied as provided and within the time period set forth in the second paragraph of this covenant will be deemed to constitute “Collateral Excess Proceeds.” The Issuers shall make an offer to all Holders of the Notes and if required by the terms of any Bank IndebtednessOther Pari Passu Lien Obligations, to the holders of such Other Pari Passu Lien Obligations (a “Collateral Proceeds Offer”), to prepay, repay or purchase such Bank Indebtedness the maximum aggregate principal amount of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash Notes that is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaidat least $2,000, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Collateral Excess Proceeds, Proceeds at an offer price in cash in an amount equal to 100100.0% of the principal amount of the Notes and Pari Passu Notes thereof (or accreted value thereof, if less), plus accrued and unpaid interest and Special Interest, if any, or, in respect of such Other Pari Passu Lien Obligations, such lesser price, if any, as may be provided for by the terms of such Other Pari Passu Lien Obligations, to the date fixed for the closing of purchasesuch offer, in accordance with the procedures set forth herein in this Indenture. The Issuers will commence a Collateral Proceeds Offer with respect to Collateral Excess Proceeds within ten Business Days after the date that Collateral Excess Proceeds exceed $10.0 million by delivering the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. The Issuers may, at their election, satisfy the foregoing obligations with respect to any Net Cash Proceeds from an Asset Disposition by making a Collateral Sale Offer with respect to such Net Cash Proceeds prior to the expiration of the relevant 365-day period (or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount such longer period provided above).
(provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amountd) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and such Other Pari Passu Lien Obligations tendered pursuant to a Collateral Sale Offer is less than the Collateral Excess Proceeds, the Issuers may use any remaining Collateral Excess Proceeds for any purpose not prohibited by this Indenture. If the aggregate principal amount of Notes or such Other Pari Passu Lien Obligations surrendered by such holders thereof exceeds the amount of Collateral Excess Proceeds, the Trustee shall select the Notes and the Issuers shall select such Other Pari Passu Lien Obligations to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such Other Pari Passu Lien Obligations tendered with adjustments as necessary so validly that no Notes or Other Pari Passu Lien Obligations will be repurchased in part in an unauthorized denomination. Upon completion of any such Collateral Sale Offer, the amount of Collateral Excess Proceeds that resulted in the Collateral Sale Offer shall be reset to zero.
(e) Any Net Cash Proceeds from an Asset Disposition of non-Collateral that are not invested or applied as provided and within the time period set forth in the second paragraph of this covenant will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Issuers shall make an offer to all Holders of the Notes and, if required by the terms of any Senior Indebtedness, to the Holders of such other Senior Indebtedness (an “Asset Disposition Offer”), to purchase the maximum aggregate principal amount of the Notes and such Senior Indebtedness that is in an amount equal to at least $2,000, that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100.0% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest and Special Interest, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuers will commence an Asset Disposition Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $10.0 million by delivering the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. The Issuers may satisfy the foregoing obligations with respect to any Net Cash Proceeds from an Asset Disposition of non-Collateral by making an Asset Disposition Offer with respect to such Net Cash Proceeds prior to the expiration of the relevant 365-day period (or such longer period provided above) or with respect to Excess Proceeds of $5.0 million or less.
(f) To the extent that the aggregate amount of Notes and such Senior Indebtedness tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company Issuers may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in any purpose not prohibited by this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer or the Senior Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes Issuers shall select the Pari Passu Notes Senior Indebtedness to be purchased on a pro rata basis based on the basis of the aggregate accreted value or principal amount of such the Notes or the Senior Indebtedness tendered with adjustments as necessary so that no Notes and Pari Passu Notesor Senior Indebtedness will be repurchased in part in an unauthorized denomination. Upon completion of any such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to that resulted in the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 pursuant to the Asset Disposition Offer. Any Asset Disposition Offer shall be made reset to all Holders. The notice, which shall govern the terms of the Asset Disposition Offer, shall state:zero.
(1g) that Pending the Asset Disposition Offer is being made pursuant to this Section 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that final application of any Notes not tendered Collateral Excess Proceeds or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer AmountExcess Proceeds, the Company shall select (or the Notes to be purchased on a pro rata basis (with such adjustments as applicable Restricted Subsidiary) may be deemed appropriate temporarily reduce revolving credit borrowings or otherwise invest the Collateral Excess Proceeds or Excess Proceeds in any manner that is not prohibited by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);this Indenture.
(9h) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest The Issuers 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will comply, to the extent applicable, with the requirements of Rule 14(e) of 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 the Notes pursuant to this Section 4.15an Asset Disposition Offer or Collateral Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.15Indenture, the Company Issuers will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its their obligations under described in this Indenture by virtue of any conflictthereof.
Appears in 1 contract
Sources: Indenture (PRETIUM CANADA Co)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition following the date hereof unless:
(1i) the Company Borrower or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Fair Market Value to be determined on as of the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;; and
(2ii) at least 75% of the consideration from such Asset Disposition received by the Company Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents Equivalents. The Borrower shall determine the Fair Market Value of any consideration from such Asset Disposition that is not cash or Replacement Assets. Cash Equivalents.
(b) For the purposes of this clause (2)Section 6.05, each of the following shall be are deemed to be cash:
: (ax) any the assumption of Indebtedness or other liabilities (as shown on the face of the Company’s Borrower (other than Disqualified Stock or such Restricted Subsidiary’s then most recent balance sheet), Junior Indebtedness) or Indebtedness or other liabilities of the Company or any Restricted Subsidiary (other than contingent liabilities Disqualified Stock or Junior Indebtedness) and Subordinated Obligations) that are assumed by the transferee release of any such assets pursuant to a customary novation agreement that releases the Company Borrower or such Restricted Subsidiary from further liability;
all liability on such Indebtedness or liabilities in connection with such Asset Disposition, (by) any securities, notes or other similar obligations received by the Company Borrower or any such Restricted Subsidiary from such the transferee that are converted within 180 days by the Company Borrower or such Restricted Subsidiary into cash and (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(cz) any Designated Noncash Non-cash Consideration received by the Company Borrower or any of its Restricted Subsidiary Subsidiaries in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith Good Faith by the Board of Directors of the CompanyBorrower), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (cz) that is at that time outstanding, not to exceed $100.0 57.5 million at the time of the receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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: Junior Lien Term Loan Credit Agreement (McClatchy Co)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition of any assets that do not constitute ABL Priority Collateral (“Non-ABL Priority Collateral”) unless:
: (1) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cash) at the time of such Asset Disposition at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value including as to be determined on the date value of contractually agreeing to such Asset Dispositionall non-cash consideration) of the shares and other assets subject to such Asset Disposition;
; (2) at least 75% of the consideration from such Asset Disposition thereof received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Temporary Cash Equivalents or Replacement Assets. For purposes of this clause Investments; (2), each 3) without limitation of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet)provisions described under Section 4.15, of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration consideration received by the Company or any Restricted Subsidiary in from such Asset Disposition having an aggregate Fair Market Value consists of assets that constitute Notes Priority Collateral, such assets, including any such assets of any Person that becomes a Subsidiary Guarantor as a result of such transaction, are concurrently with their acquisition added to the Notes Priority Collateral; (as determined in good faith 4) the Net Available Cash from any such Asset Disposition of Notes Priority Collateral is either (i) paid directly by the Board of Directors of purchaser thereof to the Company)Noteholder Collateral Agent to be held in trust in the Asset Sale Proceeds Account or (ii) deposited to the Asset Sale Proceeds Account within five Business Days after receipt thereof, taken together in each case, for application in accordance with all other Designated Noncash Consideration received pursuant to this clause Section 4.06; (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(35) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from of the date receipt of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used Cash: (A) to make one or more offers to the Holders (and, at the option of the Company, the holders of Other Pari Passu Lien Obligations) to purchase Securities (and such Other Pari Passu Lien Obligations) pursuant to and subject to the conditions contained in accordance with clause this Indenture (iieach, an “Asset Disposition Offer”); provided, however, that, that in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (aA), the Company or such Restricted Subsidiary will shall permanently retire such Indebtedness and will 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, or; provided further that if the
(iib) to the extent The Company shall not, and shall not permit any Restricted Subsidiary to, make any Asset Disposition of any ABL Priority Collateral, unless: (1) the Company or such Restricted Subsidiary elects, receives consideration at the time of such Asset Disposition at least equal to invest in Replacement Assets within the applicable Application Period; andFair Market Value (including as to the value of all non-cash consideration) of the shares and other assets subject to such Asset Disposition;
(b4) second, to the extent of the balance of the Any Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after from an Asset Disposition (covered by this Section 4.06(b) that is not invested or such earlier dateapplied, if anyor committed to be invested or applied, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash provided in Section 4.06(b)(3) will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if deemed to constitute “Excess ABL Proceeds”. When the aggregate amount of Excess ABL Proceeds exceeds $50.0 million15,000,000, within 30 days thereof, the Company will be required to shall make an offer (an “ABL Asset Disposition Offer”) to all Holders of Notes Holders, and, to the extent if required by the terms of other Senior Indebtedness, any Other Pari Passu Lien Obligations to all the holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any Asset Disposition (“Other Pari Passu Notes”) Lien Obligations, to purchase the maximum aggregate principal amount of Notes the Securities and any such Other Pari Passu Notes to which the Asset Disposition Offer applies Lien Obligations, that may be purchased out of the Excess Proceeds, ABL Proceeds at an offer price in cash in an amount equal to 100% of the principal amount of the Notes Securities and Other Pari Passu Notes Lien Obligations, in each case, plus accrued and unpaid interest to interest, if any, to, but not including, the date of purchase, subject to, without duplication, 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 herein in this Indenture or the agreements governing the Other Pari Passu NotesLien Obligations, as applicable, and, with respect to the Securities, in each case minimum denominations of $2,000 and in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the shall commence an ABL Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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.Excess ABL Proceeds
Appears in 1 contract
Sources: Indenture (Us Concrete Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition of Notes Collateral unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cash) at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets Notes Collateral subject to such Asset Disposition;
(2) at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that any Designated Non-cash Consideration received by the Company or any Restricted Subsidiary in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (2) that is at that time outstanding, not to exceed the greater of $10.0 million and 1.5% of Total Assets at the time of the receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be Cash Equivalents or Replacement Assets. For for purposes of this clause (2) and clause (b)(2)(a) below; and
(3) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as the Notes Collateral to secure the Notes.
(b) For purposes of Section 3.5(a)(2) hereof, the following shall be deemed to be cash: (a) the repayment or assumption of Indebtedness secured by Liens with a priority to the Liens in favor of the Notes and the Note Guarantees (other than Indebtedness incurred in contemplation of such Asset Disposition) and (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the disposition of Collateral, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents, to the extent of the cash or Cash Equivalents (of the variety described in clauses (1) through (7) of the definition thereof) received in that conversion.
(c) Any Net Proceeds from any Asset Disposition or Recovery Event in respect of Notes Collateral may be (1) invested by the Company or a Restricted Subsidiary in additional assets constituting Notes Collateral (including, without limitation, through capital expenditures or acquisitions of assets constituting Notes Collateral other than Capital Stock of Foreign Subsidiaries, or in the case of Net Proceeds from any Recovery Event, the performance of a restoration of the affected Collateral) within 365 days of the date of such Asset Disposition or Recovery Event, which additional assets are thereupon with their acquisition added to the Notes Collateral securing the Notes or (2) used to repay (and correspondingly reduce commitments with respect to) Pari Passu Lien Indebtedness; provided, that the Company will equally and ratably reduce Indebtedness under the Notes by making an offer to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, such offer to be conducted in accordance with the procedures set forth below for a Collateral Disposition Offer but without any further limitation in amount; provided, further, that in the case of clause (1) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Company or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment and, in the event that such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, the Company or such Restricted Subsidiary enters into another binding commitment (a “Collateral Proceeds Second Commitment”) within 180 days of such cancellation or termination (or, if later, 365 days after the receipt of such Net Proceeds); provided, further, that if any Collateral Proceeds Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Collateral Proceeds.
(d) The Company and the Guarantors shall not reinvest the proceeds of Asset Dispositions of ABL Collateral in the Capital Stock of Foreign Subsidiaries.
(e) Any Net Proceeds from Asset Dispositions of Notes Collateral or Recovery Events that are not applied or invested as provided in this subsection (a) or in accordance with the Collateral Documents will be deemed to constitute “Excess Collateral Proceeds.” When the aggregate amount of Excess Collateral Proceeds exceeds $20.0 million, within 15 days thereof the Company will be required to make an offer (“Collateral Disposition Offer”) to all Holders and all holders of other Pari Passu Lien Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of Notes Collateral to purchase the maximum principal amount of the Notes and such Pari Passu Lien Indebtedness (on a pro rata basis) to which the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in this Indenture; provided that to the extent the Excess Collateral Proceeds relate to Asset Dispositions of ABL Collateral, the Company may, prior to making a Collateral Disposition Offer, make a prepayment with respect to the maximum principal amount of Indebtedness that is secured by such Notes Collateral on a first-priority basis that may be prepaid out of such Excess Collateral Proceeds, at a price in cash in an amount equal to 100% of the principal amount of such Indebtedness, plus accrued and unpaid interest, to the date of prepayment, with any Excess Collateral Proceeds not used to prepay such Indebtedness offered to Holders in accordance with this Section 3.5(e). To the extent that the aggregate amount of Notes and other Pari Passu Lien Indebtedness so validly tendered and not properly withdrawn pursuant to a Collateral Disposition Offer is less than the Excess Collateral Proceeds (after giving effect to the prepayment of Indebtedness secured on a first-priority basis in the case of an Asset Disposition of ABL Collateral), the Company may use any remaining Excess Collateral Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. If the aggregate principal amount of Notes surrendered by Holders and Pari Passu Lien Indebtedness tendered into such Collateral Disposition Offer exceeds the amount of Excess Collateral Proceeds, the Notes and Pari Passu Lien Indebtedness to be purchased shall be selected on a pro rata basis. Upon completion of such Collateral Disposition Offer, the amount of Excess Collateral Proceeds shall be reset at zero.
(f) The Company will not, and will not permit any Restricted Subsidiary to, make any Asset Disposition (other than Asset Dispositions of Notes Collateral which shall be treated in the manner set forth in Section 3.5(a) above) unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Disposition at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in the Asset Disposition by the Company or such Restricted Subsidiary is in the form of cash. For purposes of this provision, each of the following shall will be deemed to be cash:
(a) Cash Equivalents; provided that any liabilities Designated Non-cash Consideration received by the Company or any Restricted Subsidiary in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (a) that is at that time outstanding, not to exceed the greater of $10.0 million and 1.5% of Total Assets at the time of the receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be Cash Equivalents for purposes of this clause (a) and Section 3.5(a)(2) above;
(b) any liabilities, as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent consolidated balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligationsliabilities that are by their terms subordinated to the Notes or any Note Guarantee and Indebtedness incurred in contemplation of such Asset Disposition) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(bc) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are are, within 180 days of the Asset Disposition, converted by the Company or such Restricted Subsidiary into cash (or Cash Equivalents, to the extent of the cash or Cash Equivalents (of the variety described in clauses (1) through (7) of the definition thereof) received in that conversion) within 180 days of the closing of such Asset Disposition; and
(cd) any Designated Noncash Consideration received by the Company stock or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors assets of the Company), taken together with all other Designated Noncash Consideration received pursuant kind referred to this in clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% or (5) of the Net Available Cash from such Asset Disposition:Section 3.5(g).
(ag) firstWithin 365 days after the receipt of any Net Proceeds from an Asset Disposition subject to Section 3.5(f), is applied by the Company (or such the applicable Restricted Subsidiary, as the case may be,) may apply such Net Proceeds at its option:
(i1) to repay Secured Indebtedness secured by a Permitted Lien on the extent assets (provided that such Permitted Lien is not pari passu with or subordinate to the Company Lien on such assets in favor of the Holders) subject to such Asset Disposition or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the applicable Restricted Subsidiary of the Company (if such Restricted Subsidiary is not a Guarantor) and if such Indebtedness is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to repay (and correspondingly reduce commitments with respect to) Pari Passu Lien Indebtedness; provided that the Company will equally and ratably reduce Indebtedness under the Notes by making an offer to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, such offer to be conducted in accordance with the procedures set forth below for an Asset Disposition Offer but without further limitation in amount;
(3) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary within 365 days of the Company;
(4) to make a capital expenditure; or
(5) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; provided, however, that in the cause of clauses (3), (4) and (5) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such Asset Disposition (commitment so long as the Company or such period, Restricted Subsidiary enters into such commitment with the “Application Period”), unless to the extent good faith expectation that such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, thatProceeds will be applied to satisfy such commitment within 180 days of such commitment and, in the event that such commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a)therewith, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related enters into another binding commitment (a “Second Commitment”) within 180 days of such cancellation or termination (or, if any) to be permanently reduced in an amount equal to later, 365 days after the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or receipt of such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, howeverfurther, that pending if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds;
(h) Pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) aboveProceeds, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness revolving credit borrowings or otherwise invest such the Net Available Cash Proceeds in any manner that is not prohibited by this Indenture. On the 366th day after an .
(i) Any Net Proceeds from Asset Disposition (Dispositions that are not applied or such earlier date, if any, invested as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash provided above will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $50.0 20.0 million, within 15 days thereof, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to and all holders of other Senior Pari Passu Lien Indebtedness outstanding containing provisions similar to those set forth in this Indenture with similar provisions requiring the Company respect to make an offer offers to purchase such Senior Indebtedness or redeem with the proceeds from any Asset Disposition (“Pari Passu Notes”) of sales of assets to purchase the maximum principal amount of Notes and any such other Pari Passu Notes to which the Asset Disposition Offer applies Lien Indebtedness that may be purchased out of the Excess Proceeds, at an . The offer price in cash in an amount any Asset Disposition Offer will be equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, and will be payable in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples cash. If any Excess Proceeds remain after consummation of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess ProceedsOffer, the Company may use any remaining those Excess Proceeds for general corporate purposes, subject to other covenants contained in any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other Pari Passu Notes validly Lien Indebtedness tendered and not properly withdrawn pursuant to an into such Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall will select the Notes and the holders, trustees or similar representatives, as the case may be, of such other Pari Passu Notes shall select the Pari Passu Notes Lien Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notesbasis. Upon completion of such each Asset Disposition Offer, the amount of Excess Proceeds shall will be reset at zero. Each .
(j) The Collateral Disposition Offer or Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes (and other Indebtedness required to be purchased pursuant to Section 3.5(e)) and Pari Passu Notes Lien Indebtedness required to be purchased pursuant to this Section 4.15 3.5 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes (and other Indebtedness required to be purchased pursuant to Section 3.5(e)) and Pari Passu Notes Lien Indebtedness, if applicable, validly tendered in response to the Asset Collateral Disposition Offer. Upon the commencement of an Offer or Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offerapplicable. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Dateinterest payment date, any accrued and unpaid interest will be paid on such Asset Disposition Purchase Date 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 Collateral Disposition Offer or Asset Disposition Offer.
(k) Upon the commencement of a Collateral Disposition Offer or Asset Disposition Offer, as applicable, the Company will send, by first class mail, a notice to the Trustee and each of the Holders. On The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Collateral Disposition Offer or before Asset Disposition Offer, as applicable. The notice, which will govern the terms of the Collateral Disposition Offer or Asset Disposition Offer, as applicable, will state:
(1) that the Collateral Disposition Offer or Asset Disposition Offer is being made pursuant to this Section 3.5 and the length of time the Collateral Disposition Offer or Asset Disposition Offer will remain open;
(2) the Asset Disposition Offer Amount, the purchase price and the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes ;
(3) that any Security not tendered or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by will continue to accrue interest;
(4) that, unless the Company defaults in accordance with the terms of this Section 4.15 andmaking such payment, 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 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 Note accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes payment pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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.t
Appears in 1 contract
Sources: Indenture (REV Group, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
unless (1i) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cashincluding 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 not less than the Fair Market Value fair market value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be as determined on in good faith by the date of contractually agreeing to such Asset DispositionCompany) of the shares and assets subject to such Asset Disposition;
, (2ii) at least 75% of the consideration from such Asset Disposition thereof received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets. For purposes cash equivalents (provided that the amount of this clause (2), each of the following shall be deemed to be cash:
(aw) any liabilities (as shown on the face of the Company’s 's or such Restricted Subsidiary’s then 's most recent balance sheet), sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligationsthat are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant without recourse to a customary novation agreement that releases the Company or such any of the Restricted Subsidiary from further liability;
Subsidiaries, (bx) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversionreceived) within 180 days of following the closing of such Asset Disposition; and
, (cy) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (cy) and Section 4.06(a)(ii)(y) of the 1998 Notes Indenture that is at that time outstanding, not to exceed $100.0 million 5% of Adjusted Consolidated Assets at the time of the receipt of such Designated Noncash Consideration (with the Fair Market Value fair market value of each item of Designated Noncash Consideration being measured being
(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions that is not applied in accordance with this Section 4.06 (a) exceeds $20.0 million (provided that such amount shall be reduced by the aggregate Net Available Cash from all Asset Dispositions not applied in accordance with Section 4.06(a) of the 1998 Notes Indenture prior to the Closing Date).
(b) In the event of an Asset Disposition that requires the purchase of Notes (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(iii)(C), the Company shall be required to purchase Notes (and other Senior Subordinated Indebtedness of the Company) tendered pursuant to an offer by the Company for the Notes (and other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount plus accrued and unpaid interest and liquidated damages, if any, to the date of purchase in accordance with the procedures (including prorating in the event of oversubscription), set forth in Section 4.06(c). If the aggregate purchase price of Notes (and other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of the Notes (and other Senior Subordinated Indebtedness of the Company), the Company may apply the remaining Net Available Cash for any purpose permitted by the terms of this Indenture. The Company shall not be required to make an Offer for Notes (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor (after application of the proceeds as provided in clauses (A) and (B) of Section 4.06(a)(iii)) is less than $10.0 million for any particular Asset Disposition (which lesser amount shall be carried forward for purposes of determining whether an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 30 days after the Company becomes obligated to make an Offer, the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Noteholder, a written notice stating that the Noteholder may elect to have his Notes purchased by the Company either in whole or in part (subject to prorating as hereinafter described in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the time received without giving effect applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain or incorporate by reference such information concerning the business of the Company which the Company in good faith believes will enable such Noteholders to subsequent changes make an informed decision and all instructions and materials necessary to tender Notes pursuant to the Offer, together with the address referred to in valueclause (3); and.
(32) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers' Certificate as to (i) the amount equal to 100% of the Offer (the "Offer Amount"), (ii) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Asset Disposition:
Offer is being made and (aiii) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date compliance of such Asset Disposition (allocation with the provisions of Section 4.06(a). On such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a)date, the Company shall also irrevocably deposit with the Trustee or such Restricted Subsidiary will retire such Indebtedness with a paying agent (or, if the Company is acting as its own paying agent, segregate and will cause the related commitment (if anyhold in trust) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) Offer Amount to the extent the Company or such Restricted Subsidiary elects, be invested in Temporary Cash Investments and to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Offer remains open (a) above (such balance, “Excess Proceeds”the "Offer Period"), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company shall deliver to the Trustee for cancelation the Notes or portions thereof that have been properly tendered to and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited are to be accepted by this Indenturethe Company. On the 366th day after an Asset Disposition The Trustee (or such earlier datethe Paying Agent, if anynot the Trustee) shall, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to on the date of purchase, in accordance with the procedures set forth herein mail or the agreements governing the Pari Passu Notes, as applicable, in deliver payment to each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, tendering Noteholder in the case amount of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing purchase price. In the Pari Passu Notes. To the extent event that the aggregate amount purchase price of the Notes (and Pari Passu Notes so validly tendered and not properly withdrawn pursuant other Senior Subordinated Indebtedness of the Company) delivered by the Company to an Asset Disposition Offer the Trustee is less than the Excess Proceeds, Offer Amount applicable to the Company may use any remaining Excess Proceeds for general corporate purposes, subject to Notes (and other covenants contained in this Indenture. If Senior Subordinated Indebtedness of the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess ProceedsCompany), the Trustee shall select deliver the Notes and excess to the holders, trustees or similar representatives, as Company immediately after the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis expiration of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to for application in accordance with this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;4.06.
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders Noteholders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the an appropriate form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes duly completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent Company at the address specified in the notice at least three days before Business Days prior to the Asset Disposition Purchase Date;
(7) that Holders . Noteholders shall be entitled to withdraw their election if the Company, the Depository Trustee or the Paying Agent, as the case may be, receives, Company receives not later than the second business day one Business Day prior to the Asset Disposition Purchase Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the HolderNoteholder, the principal amount of the Note which was delivered by the Holder delivered Noteholder for purchase and a statement that such Holder Noteholder is withdrawing his election to have such Note purchased;
(8) that, if . If at the expiration of the Offer Period the aggregate principal amount of Notes and any other Senior Subordinated Indebtedness of the Company included in the Offer surrendered by Holders holders thereof exceeds the Asset Disposition Offer Amount, the Company shall select the Notes and other Senior Subordinated Indebtedness of the Company to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes and other Senior Subordinated Indebtedness of the Company in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) that Holders . Noteholders whose Notes were are purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer); andsurrendered.
(104) all other procedures, if any, determined by At the Company, consistent with this Indenture, that a Holder must follow in order to have its time the Company delivers Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will Trustee which are to be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Dateaccepted for purchase, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will also deliver to the Trustee an Officers’ ' Certificate stating that such Notes or portions thereof were are to be accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.15 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu NotesSection. 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new A 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold been accepted for purchase at the properties and assets of time the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15Trustee, and shall comply with directly or through an agent, mails or delivers payment therefor to the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. surrendering Noteholder.
(d) The Company will shall comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.15Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15Section, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Indenture Section by virtue of any conflictthereof.
Appears in 1 contract
Sources: Indenture (Wesco International Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
unless (1i) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cashincluding 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 not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
, (2ii) at least 75% of the consideration from such Asset Disposition thereof received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Temporary Cash Equivalents or Replacement Assets. For purposes Investments; provided that the amount of this clause (2), each of the following shall be deemed to be cash:
(a1) any liabilities (as shown on the face of the Company’s 's or such Restricted Subsidiary’s then 's most recent balance sheet), sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are by their terms subordinated to the Notes), that are assumed by the transferee of any such assets pursuant to a customary novation agreement (provided that releases the Company or such Restricted Subsidiary is released from further liability;
all liability with respect thereto), (b2) any securities, notes or other obligations securities received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversionreceived) within 180 90 days of following the closing of such Asset Disposition; and
Disposition and (c3) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (c3) that is at that time outstanding, not to exceed the greater of (A) $100.0 25.0 million or (B) 3% of Total Assets at time of receipt of such Designated Noncash Consideration (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be cash for purposes of this provision and for no other purpose; and
and (3iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be,
) (i1) first, (A) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay repay, redeem or purchase such Bank Senior Indebtedness of the Company or Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company and other than Preferred Stock) or (B) to the extent the Company or such Restricted Subsidiary elects, to acquire 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), in the case of each of clauses (A) and (B), within 365 days from one year after the later of the date of such Asset Disposition or the receipt of such Net Available Cash; (such period2) second, the “Application Period”), unless to the extent of the balance of such Net Available Cash is otherwise used after application in accordance with clause (ii1), to make an Offer to purchase the Notes pursuant to and subject to the conditions of Section 4.06(b); provided, however, thatthat if the Company elects (or is required by the terms of any Senior Subordinated Indebtedness), such Offer may be made ratably to purchase the Notes and other Senior Subordinated Indebtedness of the Company; and (3) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (1) and (2), for any general corporate purpose permitted pursuant to the terms of this Indenture; provided, however that in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a)1) (A) or (2) above, the Company or such Restricted Subsidiary will shall retire such Indebtedness and will shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 4.06, or
(ii) to the extent the Company or such and the Restricted Subsidiary elects, Subsidiaries shall not be required to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of apply any such Net Available Cash in accordance with clause this Section 4.06(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions that is not applied in accordance with this Section 4.06 (a) or clause exceeds $5.0 million.
(b) aboveIn the event of an Asset Disposition that requires the purchase of Notes (and other Senior Subordinated Indebtedness) pursuant to Section 4.06(a)(iii)(2), the Company shall be required to purchase Notes (and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited other Senior Subordinated Indebtedness) tendered pursuant to an offer by this Indenture. On the 366th day after an Asset Disposition Company for the Notes (or such earlier dateand other Senior Subordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount plus accrued and unpaid interest and liquidated damages, if any, as to the Board date of Directors purchase (subject to the right of Holders of record on the Company or such Restricted Subsidiary determines that relevant record date to receive interest due on the relevant interest payment date) in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 4.06(c). If the aggregate purchase price of Notes (and other Senior Subordinated Indebtedness) tendered pursuant to the Offer is less than the Net Available Cash will not be applied in accordance with clause (3)(a) allotted to the purchase of the first paragraph of this Section 4.15Notes (and other Senior Subordinated Indebtedness), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will may apply the remaining Net Available Cash for any general corporate purpose permitted pursuant to the terms of this Indenture. The Company shall not be required to make an offer Offer for Notes (“and other Senior Subordinated Indebtedness) pursuant to this Section 4.06 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 4.06(a)(iii)(1)) is less than $10.0 million for any particular Asset Disposition Offer”) to all Holders (which lesser amount shall be carried forward for purposes of Notes and, determining whether an Offer is required with respect to the extent required by the terms of other Senior IndebtednessNet Available Cash from any subsequent Asset Disposition).
(c) (i) Promptly, to all holders of other Senior Indebtedness outstanding with similar provisions requiring and in any event within 10 days after the Company becomes obligated to make an offer Offer, the Company shall be obligated to purchase such Senior 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest deliver to the date of purchaseTrustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Notes purchased by the Company either in accordance with whole or in part (subject to prorating as hereinafter described in the procedures set forth herein or event the agreements governing the Pari Passu Notes, as applicable, in each case Offer is oversubscribed) in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in at the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, by first class mail, a notice to the Trustee and to each Holder at its registered addressprice. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum shall include (1) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, together with the form entitled “Option of Holder address referred to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
clause (7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchasediii);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of any conflict.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
unless (1i) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cashincluding 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 not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) fair market value of the shares and assets subject to such Asset Disposition;
, (2ii) at least 7585% (or 100% in the case of lease payments) of the consideration from such Asset Disposition thereof received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause cash, and (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3iii) an amount equal 62 54 to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be,
) (iA) first, to the extent the Company or any such Restricted Subsidiary, as the case may be, Subsidiary elects (or is required by the terms of any Bank Senior Indebtedness or Indebtedness (other than Preferred Stock) of a Wholly Owned Subsidiary) to prepay, repay or purchase Senior Indebtedness or such Indebtedness (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 60 days after the later of the date of such Asset Disposition or the receipt of such Net Available Cash; (B) second, to the extent of the balance of Net Available Cash after application in accordance with clause (A), to the extent the Company or such Restricted Subsidiary elects, to reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary) within 270 days from the later of such Asset Disposition or the receipt of such Net Available Cash; (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 (as defined below) to purchase Securities pursuant to and subject to the conditions of Section 4.06(b), provided that if the Company elects (or is required by the terms of any Senior Subordinated Indebtedness), such Offer may be made ratably to purchase the Securities and other Senior Subordinated Indebtedness, and (D) fourth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C), to prepay, repay or purchase such Bank Indebtedness of the Company (other than Indebtedness owed to an Affiliate of the Company and other than Disqualified Stock of the Company) or Indebtedness of a any Restricted Subsidiary (other than Indebtedness owed to the Company or an Affiliate of the Company), in each case described in this clause (D) within 365 days one year from the date receipt of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with or, if the Company has made an Offer pursuant to clause (iiC) of this Section 4.06(a), six months from the date such Offer is consummated; provided, however, that, that in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (aA), (C) or (D) above, the Company or such Restricted Subsidiary will shall retire such Indebtedness and will shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 4.06, or
(ii) to the extent the Company or such and the Restricted Subsidiary elects, Subsidiaries shall not be required to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of apply any such Net Available Cash in accordance with clause (a) or clause (b) above, this Section 4.06 except to the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such extent that the aggregate Net Available Cash from all Asset Dispositions 63 55 in any manner year that is not prohibited by applied in accordance with this IndentureSection 4.06 exceeds $5.0 million. On For the 366th day after an Asset Disposition purposes of this Section 4.06, the following are deemed to be cash: (x) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or such earlier date, if any, as any Restricted Subsidiary and the Board of Directors release of the Company or such Restricted Subsidiary determines from all liability on such Indebtedness in connection with such Asset Disposition and (y) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities pursuant to Section 4.06(a)(iii)(C), the Company shall be required to purchase Securities tendered pursuant to an offer by the Company for the Securities (the "Offer") at a purchase price of 100% of their principal amount plus accrued and unpaid interest, if any, to the date of purchase in accordance with the procedures (including prorationing in the event of oversubscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities tendered pursuant to the Offer is less than the Net Available Cash will not be applied allotted to the purchase of the Securities, the Company shall apply the remaining Net Available Cash in accordance with clause (3)(a) of the first paragraph of this Section 4.154.06(a)(iii)(D), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the . The Company will shall not be required to make an offer 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 $10.0 million for any particular Asset Disposition Offer”) to all Holders (which lesser amount shall be carried forward for purposes of Notes and, determining whether an Offer is required with respect to the extent required by the terms of other Senior IndebtednessNet Available Cash from any subsequent Asset Disposition).
(i) Promptly, to all holders of other Senior Indebtedness outstanding with similar provisions requiring and in any event within 10 days after the Company becomes obligated to make an offer Offer, the Company shall be obligated to purchase such Senior 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest deliver to the date of purchaseTrustee 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 accordance with whole or in part (subject to prorationing as hereinafter described in the procedures set forth herein or event the agreements governing the Pari Passu Notes, as applicable, in each case Offer is oversubscribed) in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in at the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, by first class mail, a notice to the Trustee and to each Holder at its registered addressprice. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an 64 56 informed decision (which at a minimum shall (A) include, if material, appropriate pro forma financial information and (B) include or incorporate by reference (and provide upon request) the information most recently provided in accordance with Section 4.02) and all instructions and materials necessary to enable such Holder to tender Notes Securities pursuant to the Asset Disposition Offer. Any Asset Disposition , together with the address referred to in clause (iii).
(ii) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided above, the Company shall be made deliver to all Holders. The notice, which shall govern the terms Trustee an Officers' Certificate as to (A) the amount of the Asset Disposition OfferOffer (the "Offer Amount"), shall state:
(1B) that the allocation of the Net Available Cash from the Asset Disposition Dispositions pursuant to which such Offer is being made pursuant and (C) the compliance of such allocation with the provisions of Section 4.06(a). On such date, the Company shall also irrevocably deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust) an amount equal to the Offer Amount to be invested in Temporary Cash Investments and to be held for payment in accordance with the provisions of this Section 4.15;Section. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancelation the Securities or portions thereof 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 aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section.
(2iii) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note Security purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the NoteSecurity, with the an appropriate form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes duly completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent Company at the address specified in the notice at least three days before Business Days prior to the Asset Disposition Purchase Date;
(7) that date of purchase. Holders shall be entitled to withdraw their election if the Company, the Depository Trustee or the Paying Agent, as the case may be, Company receives, not later than the second business day one Business Day prior to the Asset Disposition Purchase Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note Security which was delivered by the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note Security purchased;
(8) that, if . If at the expiration of the Offer Period the aggregate principal amount of Notes Securities and any other Senior Subordinated 65 57 Indebtedness included in the Offer surrendered by Holders holders thereof exceeds the Asset Disposition Offer Amount, the Company shall select the Notes Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes Securities and other Senior Subordinated Indebtedness in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) that . Holders whose Notes were Securities are purchased only in part shall be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer); andSecurities surrendered.
(10iv) all other procedures, if any, determined by At the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in time the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid Company delivers Securities to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will Trustee which are to be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Dateaccepted for purchase, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will also deliver to the Trustee an Officers’ ' Certificate stating that such Notes or portions thereof were Securities are to be accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.15 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu NotesSection. 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company A Security shall be deemed to have sold been accepted for purchase at the properties and assets of time the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15Trustee, and shall comply with directly or through an agent, mails or delivers payment therefor to the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. surrendering Holder.
(v) The Company will shall comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes Securities pursuant to this Section 4.15Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15Section, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Indenture Section 4.06 by virtue of any conflictthereof.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any consummate an Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cash) at the time of such Asset Disposition at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the assets or shares and assets subject to such Asset Dispositionof Capital Stock issued or sold or otherwise disposed of;
(2) at least 75% of the consideration from such Asset Disposition therefor received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assetsa combination thereof. For purposes of this clause (2)Section 3.5, each of the following shall will be deemed to be cash:
(aA) if such Asset Disposition does not involve Collateral, any liabilities (liabilities, as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities, Indebtedness that is by its terms subordinated to the Securities or any Subsidiary Guarantee and liabilities to the extent owed to the Company or any Affiliate of the Company) that are assumed by the transferee of any such assets or shares of Capital Stock pursuant to a written novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor;
(B) any secured Indebtedness, 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 Subordinated ObligationsIndebtedness to the extent owed to the Company or any Affiliate of the Company) that are assumed by the transferee of any such assets or shares of Capital Stock pursuant to a customary written novation agreement that releases the Company or such Restricted Subsidiary from further liability;liability therefor (including with respect to providing any security for such Indebtedness); and
(bC) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are (within 180 days of receipt) converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) if such Asset Disposition involves the transfer of Collateral,
(A) such Asset Disposition complies with the applicable provisions of the Collateral Documents;
(B) to the extent required by the Collateral Documents, all consideration (including cash and Cash Equivalents) received in such Asset Disposition shall be expressly made subject to Liens under the Collateral Documents; and
(C) subject to application of Net Available Cash pursuant to this Section 3.5 and the terms of the Collateral Documents, all of the Net Available Cash from Asset Disposition of First Priority Collateral shall be deposited into the Collateral Account and the Net Available Cash from Asset Disposition of Second Priority Collateral shall be applied in accordance with the Intercreditor Agreement.
(b) Within 365 days after the receipt of any Net Available Cash from an Asset Disposition, the Company or its Restricted Subsidiaries may apply such Net Available Cash (or any portion thereof) at its option:
(1) to the extent that such Net Available Cash represents proceeds of First Priority Collateral, to repay, prepay, defease, redeem, purchase or otherwise retire Shared Collateral Debt (other than the Securities and the Subsidiary Guarantees) (and, in the case of revolving loans and other similar obligations, permanently reduce the commitment thereunder), but only up to an aggregate principal amount equal to such Net Available Cash to be used to repay Indebtedness pursuant to this clause (1) multiplied by a fraction, the numerator of which is the aggregate principal amount of such Indebtedness to be repaid, prepaid, defeased, redeemed, purchased or otherwise retired and the denominator of which is the aggregate principal amount of all Shared Collateral Debt, based on amounts outstanding on the date of closing of such Asset Disposition; provided that the Company uses the remaining Net Available Cash to be used to repay Indebtedness pursuant to this clause (1) to make an offer to purchase (an “Asset Disposition Offer”) from the Holders, on a pro rata basis, an aggregate principal amount of Securities equal to such remaining Net Available Cash at a purchase price equal to 100% of the principal amount thereof, plus accrued interest and Additional Interest, if any, to the payment date;
(2) to the extent that such Net Available Cash represents proceeds of Second Priority Collateral, to repay, prepay, defease, redeem, purchase or otherwise retire Indebtedness under the Revolving Credit Facility (and permanently reduce the commitment thereunder);
(3) to the extent that such Net Available Cash does not represent proceeds of Collateral, to repay, prepay, defease, redeem, purchase or otherwise retire unsubordinated Indebtedness of the Company or any Subsidiary Guarantor in each case owing to a Person other than the Company or any Affiliate of the Company;
(4) in the case of an Asset Disposition by a Restricted Subsidiary that is not a Subsidiary Guarantor, to repay, prepay, defease, redeem, purchase or otherwise retire Indebtedness of such Restricted Subsidiary (and, in the case of revolving loans and other similar obligations, permanently reduce the commitment thereunder); or
(5) to purchase Additional Assets (or enter into a binding agreement to purchase such Additional Assets; provided that (x) such purchase is consummated within 180 days after the date that is 365 days after the receipt of such Net Available Cash from such Asset Disposition:
Disposition and (ay) firstif such purchase is not consummated within the period set forth in subclause (x), is the Net Available Cash not so applied by will be deemed to be Excess Proceeds (as defined below)); provided, further, that, to the extent that such Net Available Cash represents proceeds of Collateral, the Company or the applicable Subsidiary Guarantor will promptly grant to the Collateral Agent a security interest in such Restricted Subsidiary, as the case may be,
(i) assets pursuant to and to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness)Collateral Documents; provided that notwithstanding anything to the contrary in this Section 3.5, to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash comes from an Asset Disposition of ▇▇▇▇▇▇▇ Medical’s assets in a single transaction or a series of related transactions and such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaidin excess of $3.0 million, repaid or purchased, or
(ii) to the extent the Company or all of such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application (not only the amount in accordance with excess of $3.0 million) shall be promptly applied to repay or prepay Indebtedness of ▇▇▇▇▇▇▇ Medical.
(ac) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending Pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) aboveCash, the Company and its or any of the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner that is not prohibited by this Indenture. ; provided that any such investment of the Net Available Cash that represents proceeds of Collateral shall be in an account that is subject to a perfected security interest for the benefit of the holders of the Shared Collateral Debt.
(d) On the 366th day after an Asset Disposition (or, in the event that a binding agreement has been entered into as set forth in Section 3.5(b)(5), the later date of expiration of the 180-day period set forth in Section 3.5(b)(5) or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that not to apply the Net Available Cash will not be applied relating to such Asset Disposition as set forth in accordance with clause Section 3.5(b) (3)(a) of the first paragraph of this Section 4.15each such date being referred as an “Excess Proceeds Trigger Date”), if the such aggregate amount of Net Available Cash that has not been applied on or before the Excess Proceeds exceeds $50.0 million, Trigger Date as permitted in Section 3.5(b) (“Excess Proceeds”) will be applied by the Company will be required to make an offer (“Asset Disposition Offer”) Offer to all Holders of Notes and, to the extent (and if required by the terms of other Senior any Applicable Pari Passu Indebtedness, to all the holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any Asset Disposition (“Applicable Pari Passu Notes”Indebtedness) to purchase the maximum principal amount of Notes Securities and any such other Applicable Pari Passu Notes to which the Asset Disposition Offer applies Indebtedness that may be purchased out of the Excess Proceeds, at an . The offer price in cash in an amount any Asset Disposition Offer will be equal to 100% of the principal amount of the Notes Securities and such other Applicable Pari Passu Notes Indebtedness plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in accordance with cash.
(e) The Company may defer the procedures set forth herein Asset Disposition Offer until the aggregate unutilized Excess Proceeds equals or exceeds $15.0 million, at which time the agreements governing entire unutilized amount of Excess Proceeds (not only the Pari Passu Notes, as applicable, amount in each case in integral multiples excess of $1,000 15.0 million) will be applied as provided in principal amount (provided that the unpurchased portion Section 3.5(d). If any Excess Proceeds remain after consummation of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess ProceedsOffer, the Company and its Restricted Subsidiaries may use any remaining such Excess Proceeds for general corporate purposes, subject to other covenants contained in any purpose not otherwise prohibited by this IndentureIndenture or any of the Collateral Documents. If the aggregate principal amount of Notes Securities and such other Applicable Pari Passu Notes validly Indebtedness tendered and not properly withdrawn pursuant to an in such Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes Securities and the holders, trustees or similar representatives, as the case may be, of such other Applicable Pari Passu Notes shall select the Pari Passu Notes to Indebtedness will be purchased on a pro rata basis based on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes Securities and such other Applicable Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly Indebtedness tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company needed so that only Notes Securities in denominations minimum amounts of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date 2,000 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion will be purchased. Upon completion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 each Asset Disposition Offer Period) mail or deliver to each tendering Holder of Notes or holder or lender of Pari Passu NotesOffer, 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 any remaining Excess Proceeds from such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall will no longer be deemed to be Net Available Cash for purposes of this Section 4.15. Excess Proceeds.
(f) The Company will comply, to the extent applicable, comply with the requirements of Rule 14(e) of 14e-1 under the Exchange Act and any other securities laws or and regulations thereunder to the extent such laws and regulations are applicable in connection with the each repurchase of Notes Securities pursuant to this Section 4.15an Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Disposition provisions of this Section 4.15Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Disposition provisions of this Indenture by virtue of any conflictsuch compliance.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any in one or a series of related transactions, consummate an Asset Disposition unless:
Sale unless (1i) the Company (or such Restricted the Subsidiary, as the case may be, ) receives consideration (both cash and non cash) at the time of such Asset Sale at least equal to not less than the Fair Market Value fair market value (such ▇▇▇▇ ▇▇▇▇▇▇ Value as reasonably determined and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to be determined on the date of contractually agreeing to such Asset DispositionTrustee) of the shares assets or Equity Interests issued or sold or otherwise disposed of and assets subject to such Asset Disposition;
(2ii) at least 7580% of the consideration from such Asset Disposition therefor received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets. For Equivalents, PROVIDED that for purposes of this clause provision, (2), each x) the amount of the following shall be deemed to be cash:
(aA) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), sheet of the Company or any Restricted such Subsidiary (other than contingent liabilities and Subordinated Obligationsor in the notes thereto) of the Company or such Subsidiary that are assumed by the transferee of any such assets pursuant (other than liabilities that are by their terms PARI PASSU with or subordinated to a customary novation agreement that releases the Company Securities or such Restricted Subsidiary from further liability;
the guarantee of the Guarantors, as applicable) and (bB) any securities, notes securities or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (or as to which the Company or such Subsidiary has received at or prior to the consummation of the Asset Sale a commitment (which may be subject to customary conditions) from a nationally recognized investment, merchant or commercial bank to convert into cash or Cash Equivalents within 90 days of the consummation of such Asset Sale and which are thereafter actually converted into cash or Cash Equivalents within such 90-day period) will be deemed to be cash or Cash Equivalents (and shall be deemed to be Net Proceeds for purposes of the following provisions as and when reduced to cash or Cash Equivalents) to the extent of the net cash received in that conversionor Cash Equivalents realized thereon and (y) within 180 days the fair market value of the closing of such Asset Disposition; and
(c) any Designated Noncash Non-Cash Consideration received by the Company or any Restricted a Subsidiary in such any Non-Qualified Asset Disposition having an Sale shall be deemed to be cash to the extent that the aggregate Fair Market Value fair market value (as reasonably determined in good faith and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the Company), taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to any subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied received by the Company or any of its Subsidiaries since the date of this Indenture in all Non-Qualified Asset Sales does not exceed 5% of Stockholders' Equity as of the date of such Restricted Subsidiaryconsummation. Notwithstanding the foregoing, as the case may be,
(i) to the extent the Company or any Restricted Subsidiaryof its Subsidiaries receives Non-Cash Consideration as proceeds of an Asset Sale, as such Non-Cash Consideration shall be deemed to be Net Proceeds for purposes of (and shall be applied in accordance with) the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of following provisions when the Company or such Subsidiary receives cash or Cash Equivalents from a sale, repayment, exchange, redemption or retirement of a Restricted Subsidiary within or extraordinary dividend or return of capital on such Non-Cash Consideration. Within 365 days from after the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase receipt of any such Indebtedness pursuant to this clause (a)Net Proceeds from an Asset Sale, the Company or such Restricted Subsidiary will retire may apply such Indebtedness and will cause the related commitment Net Proceeds (if anyi) to be permanently reduced purchase one or more Nursing Facilities or Related Businesses and/or a controlling interest in an amount equal to the principal amount so prepaidCapital Stock of a Person owning one or more Nursing Facilities and/or one or more Related Businesses (and no other material assets), repaid or purchased, or
(ii) to the extent make a capital expenditure or to acquire other tangible assets, in each case, that are used or useful in any business in which the Company is permitted to be engaged pursuant to Section 4.17 hereof or such Restricted Subsidiary elects(iii) to permanently reduce Senior Debt (including, in the case of Senior Revolving Debt, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance correspondingly reduce commitments with (a) above (such balance, “Excess Proceeds”respect thereto), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending . Pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) aboveProceeds, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines may temporarily reduce Senior Revolving Debt. Any Net Proceeds from Asset Sales that the Net Available Cash will are not be applied or invested as provided in accordance with clause (3)(a) of the first paragraph sentence of this Section 4.15), if paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $50.0 25 million, the Company will be required to shall make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all and holders of any other Senior Indebtedness of the Company ranking senior to or on a parity with the Securities from time to time outstanding with similar provisions requiring the Company to make an offer to purchase or to redeem such Senior Indebtedness with the proceeds from any Asset Disposition Sales, pro rata in proportion to the respective principal amounts (“Pari Passu Notes”or, if applicable, accreted values of Indebtedness issued with an original issue discount) of Securities and such other Indebtedness then outstanding (collectively, an "ASSET SALE OFFER") to purchase the maximum principal amount (or, if applicable, accreted values of Notes Indebtedness issued with an original discount) of the Securities and any such Pari Passu Notes to which the Asset Disposition Offer applies other Indebtedness that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes thereof plus accrued and unpaid interest thereon and Liquidated Damages, if any, to the date of purchasepurchase (the "ASSET SALE PAYMENT"), in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu NotesSection 2.14. To the extent that the aggregate amount of Notes (or, if applicable, accreted values of Indebtedness issued with an original issue discount) Securities and Pari Passu Notes so validly such other Indebtedness tendered and not properly withdrawn pursuant to an Asset Disposition Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in purposes not prohibited at the time under this Indenture. If the aggregate principal amount of Notes Securities and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer such other Indebtedness surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes Securities and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to such other Indebtedness will be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notesbasis. Upon completion of such an Asset Disposition Sale Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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 (Sun Healthcare Group Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1i) the The Company or such Restricted SubsidiarySubsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value, as determined in good faith by the case may beCompany (including as to the value of all non-cash consideration), receives consideration (both cash and non cash) equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(2) Disposition and at least 7575.0% of the consideration from such thereof received, together with all other Asset Disposition received Dispositions since the Reference Date (on a cumulative basis), by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents Equivalents; provided, however, that in the case of an Asset Disposition (x) involving the disposition of non-core assets (as determined by the Company in its good faith judgment) acquired as part of any acquisition after the Issue Date or Replacement Assets. For purposes (y) for aggregate consideration of this clause (2)less than $100.0 million, each only 50.0% of the following shall consideration therefor must be deemed to be cashin the form of cash or Cash Equivalents; provided further that:
(aA) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet)promissory notes, of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes securities or other obligations or amounts received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 360 days of the receipt thereof (to the extent of the cash received in that conversionreceived) within 180 days shall be deemed to be cash solely for purposes of the closing of such Asset Disposition; this Section 10.16(a)(i), and
(cB) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (cSection 10.16(a)(i)(B) that is at that time outstanding, not to exceed the greater of (x) $100.0 225.0 million and (y) 6.0% of Consolidated Tangible Assets at the time of receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall be deemed to be cash solely for purposes of this Section 10.16(a)(i); and
(3ii) an amount equal to 100100.0% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be,), at its option except as described below:
(iA) (x) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank IndebtednessSenior Indebtedness or any Indebtedness of any non-Guarantor Subsidiary), to prepay, repay or purchase such Bank Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary of the Company within 365 days of such Asset Disposition, (y) at the Company’s election, to the investment by the Company or of a such Restricted Subsidiary in assets to replace the assets that were the subject of such Asset Disposition or assets that (as determined in good faith by the Company) are directly related to the business of the Company and the Restricted Subsidiaries existing on the Acquisition Closing Date, in each case within 365 days from the date of such Asset Disposition Disposition, or (z) a combination of the foregoing purposes within such 365-day period; or
(B) to make a pro rata offer to purchase Notes at par (and, the “Application Period”), unless to the extent required by the instrument governing such Indebtedness, any other Senior Indebtedness or Indebtedness of a non-Guarantor Subsidiary designated by the Company, at a price no greater than par) plus accrued and unpaid interest, which offer can be made at the Company’s election at any time during the 365-day period set forth in Section 10.16(a)(ii)(A) or within 10 Business Days after such period; and
(C) to the extent of the balance of such Net Available Cash is otherwise used after application in accordance with clause (iiSections 10.16(a)(ii)(A) and 10.16(a)(ii)(B), for general corporate purposes otherwise permitted under this Indenture; provided, however, that, that in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (aSections 10.16(a)(ii)(A) or 10.16(a)(ii)(B), the Company or such Restricted Subsidiary will shall 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, or
(iifurther, that in connection with any investment pursuant to Section 10.16(ii)(A)(y) to above, a binding commitment entered into during the extent 365-day period described in Section 10.16(ii)(A) above shall be treated as a permitted application of the Net Available Cash from such Asset Disposition from the date of such commitment so long as the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within enters into such commitment with the applicable Application Period; and
(b) second, to the extent of the balance of the good-faith expectation that such Net Available Cash after application in accordance with will be applied to satisfy such commitment within 180 days of such commitment (a) above (such balance, an “Excess ProceedsAcceptable Commitment”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, howeverfurther, that pending that, if any Acceptable Commitment is later cancelled or terminated for any reason before such Net Available Cash is applied, then the final application of any Company and its Restricted Subsidiaries shall be required to apply such Net Available Cash in accordance with clause (a) or clause (b) abovethis Section 10.16. Notwithstanding the foregoing provisions of this Section 10.16, the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 10.16 except to the extent that the aggregate Net Available Cash from all Asset Dispositions (including any Asset Dispositions made since the Issue Date) which are not applied in accordance with this Section 10.16 exceeds the greater of (i) $235.0 million and (ii) 6.0% of Consolidated Tangible Assets as of the date of such Asset Disposition. For the purposes of this Section 10.16, the following is deemed to be cash or Cash Equivalents: the express assumption of Indebtedness (other than any Indebtedness that is by its terms subordinated to the Notes or to any Subordinated Obligation) of the Company or any Restricted Subsidiary and for which the Company or such Restricted Subsidiary has been validly released by all creditors in writing.
(b) In the event of an Asset Disposition that results in an offer to purchase the Notes (and other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary) pursuant to Section 10.16(a)(ii)(B), the Company or such Restricted Subsidiary shall purchase Notes tendered pursuant to an offer by the Company for the Notes (and, to the extent required, other Senior Indebtedness of any non-Guarantor Subsidiary) at a purchase price of 100.0% of their principal amount (without premium) plus accrued but unpaid interest (or, in respect of such other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary, such lesser price, if any, as may be provided for by the terms of such Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary, as applicable) in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture which shall include, among other things, that the offer shall remain open for 20 Business Days following its commencement. If the aggregate purchase price of Notes (and, to the extent required, any other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary) tendered pursuant to such offer is less than the Net Available Cash allotted to the purchase thereof, the Company shall be entitled to apply the remaining Net Available Cash in accordance with Section 10.16(a)(ii)(A) or (C). The Company shall not be required to make such an offer to purchase Notes (and other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary) pursuant to this Section 10.16 if the Net Available Cash available therefor is less than the greater of (i) $235.0 million and (ii) 6.0% of Consolidated Tangible Assets (which lesser amount shall be carried forward for purposes of determining whether such an offer is required with respect to any subsequent Asset Disposition). The Company shall not be required to make such an offer to purchase Notes (and other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary) pursuant to this Section 10.16 if a third party (including any of the Company’s Restricted Subsidiaries) makes the offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to such an offer by the Company and purchases all Notes validly tendered and not withdrawn under such offer. Upon completion of any such offer by the Company for Notes, the amount of Net Available Cash related to such Asset Disposition shall be reset to zero, and during the pendency of an offer by the Company for Notes being effected in advance of being required to do so by this Indenture, the amount of Net Available Cash the Company is offering to apply in such offer shall be excluded in subsequent calculations of Net Available Cash in respect of subsequent Asset Dispositions. Pending the final application of any Net Available Cash pursuant to Section 10.16(a)(ii), the Company or the applicable Restricted Subsidiary may apply such Net Available Cash temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition cash and Cash Equivalents or Investment Grade Securities.
(or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(ac) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the The Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.1510.16. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.1510.16, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Indenture Section 10.16(c) by virtue of any conflictthereof.
Appears in 1 contract
Sources: Indenture (Terex Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1i) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cashincluding 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 not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) fair market value of the shares and assets subject to such Asset Disposition, as such fair market value may be determined (and shall be determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $10,000,000) in good faith by the Board of Directors, whose determination shall be conclusive (including as to the value of all non-cash consideration);
(2ii) in the case of any Asset Disposition (or series of related Asset Dispositions) having a fair market value of $10,000,000 or more, at least seventy-five percent (75% %) of the consideration from such therefor (excluding, in the case of an Asset Disposition (or series of related Asset Dispositions) of assets, any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, that are not Indebtedness) received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of cash, and provided that this clause (2ii) shall not apply to any Asset Disposition (or series of related Asset Dispositions), each involving assets that accounted for less than two percent (2%) of Consolidated EBITDA during the period of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), four (4) consecutive fiscal quarters ending prior to the date of such Asset Disposition for which consolidated financial statements of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Dispositionavailable; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3iii) an amount equal to one-hundred percent (100% %) of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be) as follows:
(A) first, either (1) to the extent the Company elects (or is required by the provisions of this Agreement or the terms of the Credit Agreement or of Indebtedness of a Restricted Subsidiary that is not a Note Guarantor of any Bank Indebtednessof the Notes), to prepay, repay or purchase such the Notes, the Fund VI Notes, the Bank Indebtedness of under the Company Credit Agreement or such Indebtedness of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or a Restricted Subsidiary) within 365 days after the date of such Asset Disposition or (2) 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 365 days from the date of such Asset Disposition (Disposition, or, if such periodreinvestment in Additional Assets is a project that is authorized by the Board of Directors that will take longer than such 365 days to complete, the “Application Period”)period of time necessary to complete such project;
(B) second, unless to the extent of the balance of such Net Available Cash is otherwise used after application in accordance with clause (iiA) above, to make an offer to purchase the Notes pursuant and subject to the conditions of this Section 8.4; 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 Agreement) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations to the extent otherwise permitted hereby); provided, however, that, that in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a)A)(1) 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, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and.
(b) secondNotwithstanding the foregoing provisions of this Section 8.4, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such and the Restricted Subsidiary, as the case may be, toward an offer Subsidiaries shall not be required to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of apply any such Net Available Cash in accordance with clause (a) or clause (b) above, this Section 8.4 except to the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such extent that the aggregate Net Available Cash in any manner from all Asset Dispositions that is not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with this Section 8.4 exceeds $15,000,000, it being understood that lesser amounts of Net Available Cash shall be carried forward for future application in accordance with this Section 8.4.
(c) For the purposes of clause (3)(aii) of the first paragraph of this Section 4.15)8.4, if the aggregate following are deemed to be cash: (i) Temporary Cash Investments and Cash Equivalents, (ii) 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 Excess Proceeds exceeds $50.0 millionsuch Indebtedness in connection with 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 the principal amount of such Indebtedness in connection with such Asset Disposition, (iv) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash and (v) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary.
(d) In the event of an Asset Disposition that requires the purchase of Notes pursuant to clause (iii)(B) of the first paragraph of this Section 8.4, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of purchase Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 offer by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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.the
Appears in 1 contract
Sources: Investment Agreement (Acterna Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any Asset Disposition Sale unless:
(1) the Company or such Restricted Subsidiary, as the case may be, Subsidiary (x) receives consideration (both cash and non cash) at the time of such Asset Sale at least equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
Sale (2which Fair Market Value shall be determined by the Board of Directors for any transaction (or series of transactions) involving consideration in excess of $15,000,000) and (y) the consideration received consists of cash, Cash Equivalents or other non-cash consideration, the Fair Market Value of which and basis of valuation is set forth in an Officer's Certificate; PROVIDED, HOWEVER, if at least 75% of the consideration from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary in connection with an Asset Sale is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2)Equivalents, each of the following no such Officer's Certificate shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet)required; and PROVIDED FURTHER, of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) HOWEVER, that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such a Restricted Subsidiary from such transferee transfers that are converted within 90 days of receipt thereof by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent so received), shall be deemed to be cash or Cash Equivalents for purposes of this provision AND that the amount of any Indebtedness of the cash received Company or such Restricted Subsidiary (other than Subordinated Obligations) that is actually assumed by the transferee in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration Sale and from which the Company or such Restricted Subsidiary is fully and unconditionally released shall be deemed to be cash for purposes of determining the percentage of cash consideration received by the Company or any such Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); andSubsidiary;
(32) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Sale is applied by the Company (or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary at its election within 365 270 days from the date of such Asset Disposition Sale:
(A) to prepay or repay Senior Indebtedness and permanently reduce the commitments, if any, with respect thereto; or
(i) to make an investment in properties or assets that replace the properties or assets that were the subject of such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise Asset Sale or in properties or assets that will be used in accordance with clause a Related Business or (ii)) to acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock; providedPROVIDED that such Person is, howeverat the time it becomes a Restricted Subsidiary, engaged in a Related Business; PROVIDED FURTHER that, in connection with any prepayment, repayment or purchase the case of any such Indebtedness pursuant to this clause items (ai) and (ii), the Company may elect to deem such an investment or acquisition made within 180 days prior to such Restricted Subsidiary will retire Asset Sale to have been made with Net Available Cash resulting from such Indebtedness Asset Sale. In determining whether an investment or acquisition of the type referred to in (i) and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) above was made within the applicable time limits, such investment or acquisition shall be deemed to have been made, at the extent election of the Company, either on the date the Company or such Restricted Subsidiary elects, actually made the investment or acquisition OR the date the Company or Restricted Subsidiary executed a binding commitment to invest in Replacement Assets consummate such investment or acquisition and the closing of such investment or acquisition occurs within 90 days of the applicable Application Period; anddate such commitment is executed.
(b) second, to the extent of the balance of the Any Net Available Cash after application not applied as provided in accordance with clause (2) of paragraph (a) above (such balance, “will be deemed to constitute "Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture". On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if When the aggregate amount of Excess Proceeds exceeds $50.0 10 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make (an offer to purchase such Senior Indebtedness with the proceeds from any "Asset Disposition (“Pari Passu Notes”Sale Offer") to purchase purchase, on a pro rata basis, the maximum principal amount of Notes and any such Pari Passu Notes equal in amount to which the Asset Disposition Offer applies that may be purchased out of the Excess ProceedsProceeds (and not just the amount thereof that exceeds $10 million) (the "Asset Sale Offer Amount"), at an offer a purchase price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes thereof plus accrued and unpaid interest thereon to the date of purchasepurchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth herein or in this Indenture, and in accordance with the agreements governing following standards:
(1) If the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in aggregate principal amount (provided that of Notes surrendered by Holders thereof exceeds the unpurchased portion amount of any Note Excess Proceeds, the Trustee shall not select the Notes to be less than $2,000 in purchased on a pro rata basis, based on the principal amount) oramount of Notes tendered, in the case of Pari Passu Notes, in with such other integral multiples adjustments as may be specified deemed appropriate by the Trustee, so that only Notes in the agreements governing the Pari Passu Notes. To the extent that denominations of $1.00 or integral multiples thereof shall be purchased.
(2) If the aggregate principal amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an such Asset Disposition Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes, purposes (subject to the other covenants contained in provisions of this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes). Upon completion of such an Asset Disposition Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset at to zero. Each , subject to any subsequent Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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:Sale.
(1c) that the Asset Disposition Offer is being made pursuant to this Section 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of ControlSection 5.01 below, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15covenant, and shall comply with the provisions of this Section 4.15 covenant with respect to such deemed sale as if it were an Asset DispositionSale. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant.
(d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant.
(e) Each Asset Sale Offer will be mailed to the record Holders as shown on the register of Holders within 30 days following the date the amount of Excess Proceeds exceeded $10 million, with a copy to the Trustee, and shall comply with the procedures set forth herein. Upon receiving notice of the Asset Sale Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1.00 in exchange for cash. To the extent Holders of Notes and holders of other Senior Subordinated Indebtedness, if any, which are or is the subject of an Asset Sale Offer properly tender Notes or such other Senior Subordinated Indebtedness in an aggregate amount exceeding the amount of unapplied Excess Proceeds, Notes of tendering Holders and such other Senior Subordinated Indebtedness of tendering holders will be purchased on a PRO RATA basis (based on amounts tendered).
(f) Upon surrender and cancellation of a Certificated Note that is purchased in part, the Company shall promptly issue and the Trustee shall authenticate and deliver to the surrendering Holder of such Certificated Note, a new Certificated Note equal in principal amount to the unpurchased portion of such surrendered Certificated Note; PROVIDED that each such new Certificated Note shall be in a principal amount of $1.00 or an integral multiple thereof.
(g) Upon surrender of a Global Note that is purchased in part, the Paying Agent shall forward such Global Note to the Trustee who shall make a notation on Schedule A thereof to reduce the principal amount of such Global Note, as provided in Section 4.15. 2.05(c) hereof.
(h) The Company will shall comply, to the extent applicable, with the requirements of Rule Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.154.11. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15Section, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Indenture Section 4.11 by virtue of any conflictthereof.
Appears in 1 contract
Sources: Indenture (Paragon Trade Brands Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make consummate any Asset Disposition unless:
(1) unless the Company or such Restricted SubsidiarySubsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the case may beBoard of Directors, receives consideration (both cash and non cash) equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(2) Disposition and at least 75% of the consideration from such Asset Disposition thereof received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assetscash equivalents. For the purposes of this clause (2)Section 10.13, each of the following shall be are deemed to be cash:
cash or cash equivalents: (ax) any liabilities (as shown on the face assumption of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), Indebtedness of the Company or any Restricted Subsidiary Subsidiary, (other than contingent liabilities and Subordinated Obligationsy) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations securities received by the Company or any such Restricted Subsidiary from such the transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
after receipt thereof and (cz) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Disposition Sale having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not With respect to exceed $100.0 million (with any Asset Disposition occurring on or after the Fair Market Value of each item of Designated Noncash Consideration being measured at Issue Date from which the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Company or any Restricted Subsidiary receives Net Available Cash from such Asset Disposition:
(a) firstCash, is applied by the Company or such Restricted Subsidiary, as the case may be,
Subsidiary shall (i) within 360 days after the date such Net Available Cash is received and to the extent the Company or any such Restricted Subsidiary, as the case may be, Subsidiary elects (or is required by the terms of any Bank Senior Indebtedness), ) to (A) apply an amount equal to such Net Available Cash to prepay, repay or purchase such Bank Indebtedness of under the Senior Credit Agreements or Indebtedness secured by a Permitted Lien, 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 Restricted Subsidiary within 365 days from with Net Available Cash received by the date of Company or another Restricted Subsidiary) and (ii) apply such Asset Disposition excess Net Available Cash (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with not applied pursuant to clause (iii)) as provided in the following paragraphs of this Section 10.13; provided, however, that, that in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a)A) above, the Company or such Restricted Subsidiary will shall retire such Indebtedness and will 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, or
. The amount of Net Available Cash required to be applied pursuant to clause (ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent above and not theretofore so applied shall constitute "Excess Proceeds." Pending application of the balance of the Net Available Cash after application in accordance with (a) above (such balancepursuant to this provision, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash shall be invested in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Temporary Cash in Investments. If at any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if time the aggregate amount of Excess Proceeds exceeds not theretofore subject to an Excess Proceeds Offer (as defined below) totals at least $50.0 million, 15 million the Company will be shall, not later than 30 days after the end of the period during which the Company is required to apply such Excess Proceeds pursuant to clause (i) of the immediately preceding paragraph of this Section 10.13(a) (or, if the Company so elects, at any time within such period), make an offer (“Asset Disposition an "Excess Proceeds Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”") to purchase from the maximum Holders on a pro rata basis an aggregate principal amount of Notes and any such Pari Passu Notes equal to which the Asset Disposition Offer applies that may be purchased out of the Excess ProceedsProceeds (rounded down to the nearest multiple of $1,000) on such date, at an offer a purchase price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus such Notes, plus, in each case, accrued and unpaid interest (if any) to the date of purchasepurchase (the "Excess Proceeds Payment"). Upon completion of an Excess Proceeds Offer the amount of Excess Proceeds remaining
(b) Unless the Company shall have theretofore called for redemption all the outstanding Notes pursuant to Article Eleven hereof, on or before the 30th day after its becomes obligated to make an Excess Proceeds Offer, the Company or, at the written request of the Company, the Trustee, shall be obligated to mail to each Holder (and the Trustee, if applicable) at the address appearing on the Note Register, a written notice as prepared by the Company stating that the Holder may elect to have his Notes purchased by the Company either in accordance with whole or in part (subject to prorationing as hereinafter described in the procedures set forth herein or event the agreements governing the Pari Passu Notes, as applicable, in each case Excess Proceeds Offer is oversubscribed) in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in at the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased applicable purchase price on a pro rata basis on date that is 60 days after the basis of the aggregate principal amount date of such tendered Notes and Pari Passu Notesnotice (the "Purchase Date"). Upon completion The Company shall also deliver a copy of such Asset Disposition Offer, the amount notice of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law Trustee.
(the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”c) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 pursuant to the Asset Disposition Offer. Any Asset Disposition Offer shall be made to all Holders. The Each notice, which shall govern the terms of the Asset Disposition Excess Proceeds Offer, shall state:
(1i) that the Asset Disposition an Excess Proceeds Offer is being made and that such Holder has the right to require the Company to purchase such Notes on the Purchase Date pursuant to this Section 4.1510.13;
(2ii) the Asset Disposition Offer Amount and date by which the Asset Disposition Purchase Datepurchase right must be exercised;
(3iii) that any the price at which such Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note will be purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only Excess Proceeds Offer; (iv) a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse description of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, procedures that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender their Notes pursuant to the Asset Disposition such Excess Proceeds Offer. On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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 (Signature Resorts Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1i) the Company or such Restricted Subsidiary, as the case may be, receives consideration (both cash and non cashincluding by way of relief from, or by any other person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to not less than the Fair Market Value fair market value (such ▇▇▇▇ ▇▇▇▇▇▇ Value fair market value to be determined on the date of contractually agreeing to such Asset Disposition) ), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition;
(2ii) at least (i) 75% for sales of assets that do not constitute Charged Property or (ii) 100% for sales of assets that constitute Charged Property, of the consideration from for such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents or Replacement Assets. For purposes Equivalents; and provided that, with respect to sales of this clause assets that do not constitute Charged Property, the amount of
(2), each A) the greater of the following shall be deemed to be cash:
(a) principal amount and the carrying value of any liabilities (as shown reflected on the face Company’s most recent consolidated balance sheet or in the footnotes thereto or, if Incurred or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Company’s consolidated balance sheet or in the footnotes thereto if such incurrence or increase had taken place on or prior to the date of such balance sheet, as determined by the Company) of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are by their terms subordinated to the Facilities, that are (1) assumed by the transferee of any such assets (or a third party in connection with such transfer) pursuant to a customary novation written agreement that which releases or indemnifies the Company from such liabilities or such Restricted Subsidiary from further liability(2) otherwise cancelled or terminated in connection with the transaction;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition[Reserved]; and
(cC) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board [Reserved], shall each be deemed to be Cash Equivalents for purposes of Directors of the Company), taken together with all this provision and for no other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value)purpose; and
(3iii) an amount equal to one hundred (100% ) per cent. of the Net Available Cash from such Asset DispositionDisposition is applied:
(aA) firstif the assets sold pursuant to such Asset Disposition constitute Charged Property, the Company shall be required to apply (I) one hundred (100) per cent. of the Net Available Cash from such Asset Disposition to promptly repay the Term Loans under each Term Facility (pro rata across such Term Facilities), pro forma for such disposition, the Proportionate Net Leverage Ratio is greater than 3.00:1.00; (II) fifty (50) per cent. of the Net Available Cash from such Asset Disposition to repay the Term Loans under each Term Facility (pro rata across such Term Facilities) if, pro forma for such disposition, the Proportionate Net Leverage Ratio is equal to or less than 3.00:1.00 but greater than 2.50:1.00 and (III); zero (0) per cent. of the Net Available Cash from such Asset Disposition to repay the Term Facilities if, pro forma for such disposition, the Proportionate Net Leverage Ratio is equal to or less than 2.50:1.00. For the avoidance of doubt, any proceeds of such Asset Disposition not required to be applied pursuant to this sub-paragraph (iii)(A) shall not constitute Excess Proceeds and may be used for any purposes not prohibited under this Agreement; and
(B) if the assets sold pursuant to such Asset Disposition do not constitute Charged Property, an amount equal to one hundred (100) per cent. of the Net Available Cash from such Asset Disposition is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of any Debt other than Debt owed to the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition Subordinated Debt and/or to invest in or commit to invest in Additional Assets,
(such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, 1) in connection with any prepayment, repayment or purchase of any such Indebtedness Debt pursuant to this clause sub-paragraph (a)B) above, the Company or such Restricted Subsidiary will retire such Indebtedness Debt and will cause the related commitment (if any) (other than in the case of any asset-based credit facility) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchasedpurchased provided further that if the Company elects that any repayment of any revolving credit facility shall constitute an application of Net Available Cash under this paragraph (B) (the amount so elected to be applied being, orthe "RCF Election Amount"), such repayment shall be accompanied by a permanent cancellation of commitments under such revolving credit facility in an amount at least equal to such RCF Election Amount;
(ii2) to in the extent the Company case of sub-paragraph (B) above, a binding commitment or letter of intent entered into not later than such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance 365th day shall be treated as a permitted application of the Net Available Cash after application from the date of such commitment or letter of intent so long as the Company 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 the later of such 365th day and one hundred and eighty (180) days of such commitment or letter of intent (an "Acceptable Commitment") or, in accordance with the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Available Cash is applied in connection therewith, the Company enters into another Acceptable Commitment (aa "Second Commitment") above within one hundred and eighty (180) days of such balancecancellation 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”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that and
(3) pending the final application of the amount of any such Net Available Cash in accordance with clause sub-paragraph (aB) above or clause (b) aboveotherwise in accordance with this Section 4, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness Debt or otherwise invest use such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition Agreement.
(or such earlier date, if any, as the Board b) The amount of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in accordance with clause paragraph (3)(aa) above will be deemed to constitute "Excess Proceeds" under this Agreement; provided that, to the extent the Company has elected to prepay, repay or purchase any amount of Debt pursuant to sub-paragraph (a)(iii)(B) above (other than Obligations under this Agreement) at a price of no less than one hundred (100) per cent. of the first paragraph principal amount thereof, and has extended such offer to the Lenders on at least a pro rata basis pursuant to Clause 8.5 (Application of this Section 4.15prepayments), if to the aggregate amount extent the creditors in respect of Excess Proceeds exceeds $50.0 millionsuch Debt (including the Lenders) elect not to tender their Debt for such prepayment, repayment or purchase, the Company will be required deemed to have applied an amount of Net Available Cash equal to such amount not tendered under this paragraph (b), and such amount shall not increase the amount of Excess Proceeds.
(c) In the case of sub-paragraph (a)(iii)(B) above, on the 366th day (or such longer period permitted by paragraph (a) above) after the later of an Asset Disposition or the receipt of such Net Available Cash, , the Company will within ten (10) Business Days make an offer (“an "Asset Disposition Offer”") to all Holders of Notes andeach Lender under the Facility, to the extent and if required or permitted by the terms of other Senior Indebtednessany Debt, to all the holders of other Senior Indebtedness such Debt, to prepay the outstanding with similar provisions requiring Facility (and only to the Company to make an offer to purchase extent the Facility is outstanding) held by any such Senior Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) Lender at par, and to purchase the maximum aggregate principal amount (or accreted value, as applicable) of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies Debt that may be purchased out of the Excess Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount of offer price required by the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchaseterms thereof, in accordance with the procedures set forth herein or in the agreements agreement(s) governing such Debt.
(d) The Company may satisfy the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of foregoing obligations with respect to any Note shall not be less than $2,000 in principal amount) or, Net Available Cash from an Asset Disposition in the case of Pari Passu Notessub-paragraph (a)(iii)(B) above, by making an Asset Disposition Offer with respect to such Net Available Cash prior to the expiration of the relevant three hundred and sixty-five (365) days (or such longer period provided above) with respect to all or part of the Net Available Cash (the "Advance Portion") in such other integral multiples as may be specified advance of being required to do so by this Agreement (an "Advance Offer").
(e) Other than in the agreements governing case of sub-paragraph (a)(iii)(A) above, Clause 8.5 (Application of prepayments) shall apply to any prepayment of the Pari Passu NotesFacility.
(f) If the aggregate principal amount (or accreted value, if applicable) of the Facility or other Debt elected to be repaid pursuant to sub-paragraph (a)(iii)(A) above, as the case may be, surrendered by such holders thereof exceeds the amount offered in the Asset Disposition Offer (or in the case of an Advance Offer, the Advance Portion), the Company shall repay the Facility and such Debt, as the case may be, on a pro rata basis based on the aggregate principal amount (or accreted value, if applicable) of the Facility offered to be repaid or such Debt, as the case may be, tendered with adjustments as necessary so that no Facility to be repaid or Debt, as the case may be, will be repurchased in part in an unauthorized denomination. Upon completion of any such Asset Disposition Offer (or Advance Offer), the amount of Excess Proceeds that resulted in the requirement to make an Asset Disposition Offer shall be reset to zero (0) (regardless of whether there are any remaining Excess Proceeds upon such completion). Upon consummation or expiration of any Asset Disposition Offer, any remaining Net Available Cash shall not be deemed Excess Proceeds and the Company may use such Net Available Cash for any purpose permitted by this Agreement.
(g) To the extent that the aggregate amount (or accreted value, if applicable) of Notes outstanding Facility prepaid and Pari Passu Notes so validly Debt, as the case may be, tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceedsamount offered in the Asset Disposition Offer (or, in the case of an Advance Offer, the Advance Portion), the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 and, in additionAdvance Offer, 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 Advance Portion) for any case purposes 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 Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations otherwise prohibited under this Indenture by virtue of any conflictAgreement.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will Issuer shall not, and will shall not permit any of its the Restricted Subsidiaries (and, in the case of an Asset Disposition described in clause (3) of the definition thereof, any Unrestricted Subsidiary) to, make any consummate an Asset Disposition Disposition, unless:
(1) the Company Issuer or such Restricted Subsidiary (or, in the case of an Asset Disposition described in clause (3) of the definition thereof, any Unrestricted Subsidiary), as the case may be, receives consideration (both cash and non cash) at the time of such Asset Disposition at least equal to not less than the Fair Market Value of the assets sold or otherwise disposed of (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on measured as of the date of contractually agreeing the definitive agreement with respect to such Asset Disposition) of the shares and assets subject to such Asset Disposition;); and
(2) at least 75% of the consideration from such Asset Disposition therefor received by the Company Issuer or such Restricted Subsidiary (or, in the case of an Asset Disposition described in clause (3) of the definition thereof, any Unrestricted Subsidiary), as the case may bebe (which, for purposes of this clause (2), consideration will not include any contingent payment obligations related to such Asset Disposition, including, earn-out payments, purchase price adjustments and deferred purchase price payments), is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of Equivalents; provided that the following shall be deemed to be cashamount of:
(aA) any liabilities (liabilities, as shown on the face of the CompanyIssuer’s or such Restricted Subsidiary’s then most recent balance sheet)sheet or in the notes thereto, of the Company Issuer or any of its Restricted Subsidiary Subsidiaries (other than contingent liabilities and Subordinated Obligationsliabilities that are by their terms subordinated to the Notes) (i) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases and from which the Company Issuer or such Restricted Subsidiary from further liabilityhas been validly released by all creditors in writing, or (ii) in respect of which neither the Issuer nor any Restricted Subsidiary following such Asset Disposition has any obligation;
(bB) any securities, notes securities or other obligations received by the Company Issuer or any such Restricted Subsidiary (or, in the case of an Asset Disposition described in clause (3) of the definition thereof, any Unrestricted Subsidiary) from such transferee that are converted by the Company Issuer or such Restricted Subsidiary (or, in the case of an Asset Disposition described in clause (3) of the definition thereof, any Unrestricted Subsidiary) into cash or Cash Equivalents (to the extent of the cash received in that conversionor Cash Equivalents received) within 180 days of following the closing of such Asset Disposition;
(C) any Capital Stock, properties or assets of the kind referred to in Section 4.11(b)(2);
(D) cash held in escrow as security for any purchase price settlement, for damages in respect of a breach of representations and warranties or covenants or for payment of other contingent obligations in connection with such Asset Disposition; and
(cE) any Designated Noncash Consideration received by the Company Issuer or any Restricted Subsidiary (or, in the case of an Asset Disposition described in clause (3) of the definition thereof, any Unrestricted Subsidiary) in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (cE) that is at that time outstanding, not to exceed the greater of (x) $100.0 20.0 million and (y) 2.0% of the Total Assets of the Issuer at the time of the receipt of such Designated Noncash Consideration, with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value); and, in each case, shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 365 days after the receipt of any Net Cash Proceeds of any Asset Disposition, the Issuer or such Restricted Subsidiary (or, in the case of an Asset Disposition described in clause (3) an amount equal to 100% of the definition thereof, any Unrestricted Subsidiary), at its option, may apply the Net Available Cash Proceeds from such Asset DispositionDisposition to one or more of the following, or any combination,
(1) to reduce or repay:
(aA) firstIndebtedness under the Credit Facility and (i) permanently repay any term loans thereunder or (ii) reduce the revolving commitments, is applied by the Company or such Restricted Subsidiaryif any, as the case may be,thereunder; or
(iB) to the extent the Company property that is subject to such Asset Disposition was sold by a non-Guarantor Subsidiary (other than an Unrestricted Subsidiary), Indebtedness of a non-Guarantor Subsidiary, other than Indebtedness owed to the Issuer or any another Restricted Subsidiary, as ; or
(2) to make (A) an Investment in any one or more businesses; provided that such Investment in any business is in the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness form of the Company or acquisition of Capital Stock of a Restricted Subsidiary within 365 days or results in the Issuer or its Restricted Subsidiaries owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (B) capital expenditures in respect of the Issuer, its Restricted Subsidiaries or their respective assets or (C) acquisitions of other properties or assets to be held by the Issuer or its Restricted Subsidiaries (including assets that replace the business, properties and assets of the Issuer or any of its Restricted Subsidiaries that were the subject of such Asset Disposition, but excluding Capital Stock or other Investments in any Unrestricted Subsidiaries), in the case of each of (A), (B) and (C), used or useful in a Related Business; or
(3) to reduce or repay Pari Passu Payment Lien Obligations, provided, that if the Issuer or any Restricted Subsidiary shall so reduce Pari Passu Payment Lien Obligations, the Issuer shall equally and ratably reduce Obligations under the Notes in accordance with the provisions set forth under Section 3.07, through open market purchases of the Notes or through an offer to purchase Notes (in accordance with the procedures set forth below for an Asset Disposition Offer); provided, that all Net Cash Proceeds used to make such an offer to purchase shall be deemed to have been so applied whether or not accepted by the Holders; or
(4) to reduce or repay Obligations under the Notes in accordance with the provision set forth under Section 3.07, through open market purchases of the Notes or through an offer to purchase Notes (in accordance with the procedures set forth below for an Asset Disposition Offer); provided, that all Net Cash Proceeds used to make such an offer to purchase shall be deemed to have been so applied whether or not accepted by the Holders; provided that a binding commitment to apply Net Cash Proceeds as set forth in Section 4.11(b)(2) shall be treated as a permitted application of the Net Cash Proceeds from the date of such Asset Disposition (such period, commitment so long as the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company Issuer or such Restricted Subsidiary (or, in the case of an Asset Disposition described in clause (3) of the definition thereof, such Unrestricted Subsidiary) enters into such commitment with the good faith expectation that such Net Cash Proceeds will retire be applied to satisfy such Indebtedness and will cause commitment within 180 days of the related commitment end of such 365-day period (if anyan “Acceptable Commitment”) to be permanently reduced and, in an amount equal to the principal amount so prepaidevent any Acceptable Commitment is later cancelled or terminated for any reason before the Net Cash Proceeds are applied in connection therewith, repaid or purchased, or
(ii) to then the extent the Company Issuer or such Restricted Subsidiary elects(or, in the case of an Asset Disposition described in clause (3) of the definition thereof, such Unrestricted Subsidiary) shall be permitted to invest apply the Net Cash Proceeds in Replacement Assets any manner set forth above before the expiration of such 180-day period and, in the event the Issuer or such Restricted Subsidiary (or, in the case of an Asset Disposition described in clause (3) of the definition thereof, such Unrestricted Subsidiary) fails to do so, then such Net Cash Proceeds shall constitute Excess Proceeds (as defined below).
(c) Any Net Cash Proceeds from an Asset Disposition that are not invested or applied as provided and within the applicable Application Period; and
(btime period set forth in Section 4.11(b) second, will be deemed to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, constitute “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward . The Issuer shall make an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors all Holders of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause Notes (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to and all holders of other Senior Indebtedness outstanding Pari Passu Payment Lien Obligations containing provisions similar to those set forth in this Indenture with similar provisions requiring the Company respect to make an offer offers to purchase such Senior Indebtedness purchase, prepay or redeem with the proceeds from any Asset Disposition (“Pari Passu Notes”) of sales of assets to purchase purchase, prepay or redeem the maximum aggregate principal amount of the Notes (equal to $2,000 or integral multiples of $1.00 in excess thereof) and any such Pari Passu Notes to which Payment Lien Obligations (plus all accrued interest on such Indebtedness and the Asset Disposition Offer applies amount of all fees and expenses, including premiums, incurred in connection therewith), that may be purchased out of the Excess Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event such Pari Passu Payment Lien Obligations were issued with original issue discount, 100% of the Notes and Pari Passu Notes accreted value thereof), plus accrued and unpaid interest to, but not including, the date fixed for the closing of such offer (subject to the rights of Holders on the relevant record date of purchaseto receive interest due on the relevant interest payment date), in accordance with the procedures set forth herein in this Indenture or the agreements governing the Pari Passu NotesPayment Lien Obligations. The Issuer shall commence an Asset Disposition Offer with respect to Excess Proceeds within 30 days after the date that Excess Proceeds exceed $30.0 million by delivering the notice required pursuant to Section 3.11, as applicablewith a copy to the Trustee. The Issuer may, in each case in integral multiples at its election, satisfy the foregoing obligations with respect to any Net Cash Proceeds from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Cash Proceeds prior to the expiration of $1,000 in principal amount the relevant 365-day period (or such longer period provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amountabove).
(d) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly Payment Lien Obligations tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in any purpose not prohibited by this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer Payment Lien Obligations surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees applicable agent or similar representatives, as the case may be, of Issuer shall select such Pari Passu Notes shall select the Pari Passu Notes Payment Lien Obligations to be purchased on a pro rata basis based on the basis of the aggregate accreted value or principal amount of the Notes tendered (with adjustments as necessary so that no Notes will be repurchased in part in an unauthorized denomination) or such tendered Notes and Pari Passu NotesPayment Lien Obligations tendered. Upon completion of any such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to that resulted in the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 pursuant to the Asset Disposition Offer. Any Asset Disposition Offer shall be made reset to all Holders. The notice, which shall govern the terms of the Asset Disposition Offer, shall state:zero.
(1e) Pending the final application of any Excess Proceeds, the Issuer (or the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Excess Proceeds in any manner that the Asset Disposition Offer is being made pursuant to not prohibited by this Section 4.15;Indenture.
(2f) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and Issuer shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will comply, to the extent applicable, with the requirements of Rule 14(e) of 14e-l 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 the Notes pursuant to this Section 4.15an Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.15Indenture, the Company will Issuer shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under described in this Indenture by virtue of any conflictthereof.
Appears in 1 contract
Sources: Indenture
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cashincluding 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 not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;,
(2) at least 75% of the consideration from such Asset Disposition thereof received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash cash, assets useful in a Permitted Business or Cash Equivalents Permitted Securities, or Replacement Assets. For purposes the assumption by the purchaser of this clause (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by their terms subordinated to the transferee Notes) as a result of which the Company and the Restricted Subsidiaries are no longer obligated with respect to those liabilities; provided that the amount of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition shall be deemed to be cash for the purposes of this provision (but for no other purpose) so long as such amount, taken together with the Fair Market Value when received of all other Designated Noncash Consideration that is at that time outstanding (i.e., that has not been sold for or otherwise converted into cash or Permitted Securities), does not exceed $50,000,000; provided, further, that (A) securities or other assets received by the Company or any Restricted Subsidiary from such the transferee that are converted by the Company or such Restricted Subsidiary into cash (within 180 days after the closing of such Asset Disposition shall be considered to be cash to the extent of the cash received in that conversion; and (B) within 180 days any cash consideration paid to the Company or the Restricted Subsidiary in connection with the Asset Disposition that is held in escrow or on deposit to support indemnification, adjustment of the closing purchase price or similar obligations in respect of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company)shall be considered to be cash, taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset DispositionDisposition is applied by the Company (or such Restricted Subsidiary, as the case may be) within 365 days after the later of the date of such Asset Disposition and the receipt of such Net Available Cash:
(aA) firstto prepay, repay, purchase, repurchase, redeem, retire, defease or otherwise acquire for value Secured Indebtedness of the Company or a Subsidiary Guarantor (other than any Disqualified Stock or Subordinated Obligations) or Indebtedness of a Restricted Subsidiary that is applied not a Subsidiary Guarantor, in each case other than Indebtedness owed to the Company or an Affiliate of the Company;
(B) 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); provided, that a binding commitment to apply Net Available Cash in accordance with this clause (B) shall be treated as an application of such Net Available Cash from the date of such commitment if (i) such reinvestment is consummated within 180 days at the end of such 365 day period referred to in this clause (3) and (ii) if such reinvestment is not consummated within the period set forth in subclause (i) or such binding commitment is terminated, the Net Available Cash shall constitute available Net Available Cash; or
(C) (i) to redeem the Notes of either series or make open market purchases thereof at a price not less than 100% of the principal amount thereof or (ii) to make an Asset Disposition Offer to purchase Notes of either series pursuant to and subject to the conditions set forth in Section 4.10(b); provided, however, that if the Company elects (or is required by the terms of any Pari Passu Indebtedness), such Asset Disposition Offer may be made ratably (determined based upon the respective principal amounts of the Notes of either series and such Pari Passu Indebtedness being purchased or repaid) to purchase the Notes of either series and to purchase or otherwise repay such Pari Passu Indebtedness; provided that pending final application of any such Net Available Cash in accordance with clause (3)(A), (B) or (C) above, the Company and the Restricted Subsidiaries may temporarily reduce revolving Indebtedness outstanding under the Credit Agreement or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. To the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) above, the Company or such Restricted Subsidiary, as the case may be,
, may use such balance for any general corporate purpose not prohibited by the terms of this Indenture. In connection with any prepayment, repayment, purchase, repurchase, redemption, retirement, defeasance or other acquisition for value of Indebtedness pursuant to clause (iA) to the extent or (C) above, the Company or any such Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), 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 repaid, purchased, or
(ii) to repurchased, redeemed, retired, defeased or otherwise acquired for value. Notwithstanding the extent foregoing provisions of this Section 4.10, the Company or such and the Restricted Subsidiary elects, Subsidiaries will not be required to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of apply any such Net Available Cash in accordance with clause (a) or clause (b) above, this covenant except to the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such extent that the aggregate Net Available Cash in any manner from all Asset Dispositions that is not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds covenant exceeds $50.0 million50,000,000.
(b) In the event of an Asset Disposition that requires the purchase of Notes of either series pursuant to Section 4.10(a)(3)(C), the Company will be required required
(i) to make purchase Notes of such series tendered pursuant to an offer by the Company for the Notes of such series (the “Asset Disposition Offer”) at a purchase price of 100% of their principal amount plus accrued and unpaid interest thereon to all the date of purchase (subject to the right of Holders of Notes record on the relevant date to receive interest due on the relevant Interest Payment Date) in accordance with the procedures, including prorating in the event of oversubscription, set forth in this Indenture, and,
(ii) to purchase or otherwise repay Pari Passu Indebtedness of the Company on the terms and to the extent required by contemplated thereby at the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring purchase price set forth in the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any Asset Disposition relevant documentation (“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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus including accrued and unpaid interest to the date of purchaseacquisition, in accordance with the procedures set forth herein or “purchase price”), provided that to the agreements governing extent the purchase price of any such Pari Passu Notes, as applicable, in each case in integral multiples Indebtedness exceeds 100% of $1,000 in the principal amount (provided that thereof, plus accrued and unpaid interest thereon to the unpurchased portion date of any Note acquisition, the Company shall not be less than $2,000 in principal amount) oruse any Net Available Cash to pay such purchase price, in except as permitted by the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notesnext sentence. To the extent that If the aggregate amount purchase price of Notes of either series and Pari Passu Notes so validly Indebtedness tendered and not properly withdrawn pursuant to an the Asset Disposition Offer is less than the Excess ProceedsNet Available Cash allotted to the purchase of the Notes of such series and Pari Passu Indebtedness, the Company may use will apply the remaining Net Available Cash for any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in purpose not prohibited by the terms of this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and The Company will not properly withdrawn pursuant be required to make an Asset Disposition Offer exceeds the amount for Notes of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes either series and Pari Passu NotesIndebtedness pursuant to this Section 4.10 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 4.10(a)(3)(A) and (B)) is less than $50,000,000 for any particular Asset Disposition (which lesser amount will be carried forward for purposes of determining whether an Asset Disposition Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon completion consummation of such any Asset Disposition Offer, the amount Net Available Cash in respect of Excess Proceeds any Asset Disposition(s) shall be reset at reduced to zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement.
(c) (i) Promptly, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days and in any event within 10 days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required becomes obligated to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of make an Asset Disposition Offer, the Company shall send, by first class mail, a notice be obligated to deliver to the Trustee and send or, at the request of the Company have the Trustee send (such notice to be provided to the Trustee at least five Business Days before the Trustee is requested to send such notice. unless a shorter period shall be satisfactory to the Trustee), in the name and on behalf of the Company, by first-class mail to each Holder, or in the case of Global Notes, send in accordance with the Applicable Procedures of the Depositary, a written notice stating that the Holder may elect to have its Notes of either series purchased by the Company either in whole or in part (subject to prorating as hereinafter described in the event the Asset Disposition Offer is oversubscribed) in minimum denominations of $2,000 of principal amount or any greater integral multiple of $1,000 thereof, at its registered addressthe applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the “Purchase Date”) and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum shall include (1) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports); provided that in lieu of providing the reports specified in this subclause (1), the Company may, at its option, notify the holders that such reports are available to them in electronic format through the SEC’s ▇▇▇▇▇ system, (2) a description of material developments in the Company’s business subsequent to the date of the latest of such reports, and (3) if material, appropriate pro forma financial information) and all instructions and materials necessary to 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, together with the form entitled “Option of Holder address referred to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
clause (7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchasediii);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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 (Aecom Technology Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any Asset Disposition unless:
with respect to First-Priority Collateral unless (1i) the Company or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration (both cash and non cashincluding 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 not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) fair market value of the shares Capital Stock and assets subject to such Asset Disposition;
, (2ii) at least 75% of the consideration from such Asset Disposition thereof received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of (A) cash or Temporary Cash Equivalents or Replacement Assets. For purposes of this clause Investments, (2), each of the following shall be deemed B) First-Priority Assets to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received owned by the Company or any Restricted Subsidiary and used in a Permitted Business, to the extent they are concurrently with their acquisition added to the First-Priority Collateral securing the Securities, or (C) Capital Stock in one or more Persons engaged in a Permitted Business that are or thereby become Wholly Owned Subsidiaries of the Company and (iii) to the extent Capital Stock of a Person is received by the Company and its Restricted Subsidiaries pursuant to clause (ii)(C) above, assets of such Person that qualify as First-Priority Assets with a fair market value that is equal to or greater than (A) 75% of the fair market value of the First-Priority Collateral that is the subject of such Asset Disposition having an aggregate Fair Market Value less (as determined in good faith B) the fair market value of any consideration received by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received Company and its Restricted Subsidiaries pursuant to this clause (cii)(A) that is at that time outstanding, not to exceed $100.0 million or (B) above are concurrently with the Fair Market Value of each item of Designated Noncash Consideration being measured at acquisition added to the time received without giving effect to subsequent changes in value)First-Priority Collateral securing the Securities; and
and (3iv) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be,):
(A) first, to the extent the Company or such Restricted Subsidiary elects, to reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary or the application by the Company of the Net Available Cash received by a Restricted Subsidiary of the Company), in each case within 365 days (or, in the case of Foreign Subsidiary Asset Dispositions, 545 days) from the later of such Asset Disposition or the receipt of such Net Available Cash, PROVIDED that such Additional Assets constitute (x) First-Priority Assets that are concurrently with their acquisition added to the First-Priority Collateral securing the Securities or (y) Capital Stock of a Wholly Owned Subsidiary with assets that qualify as First-Priority Assets to the extent that such First Priority Assets, together with any First-Priority Assets described in clause (x), have a fair market value that is equal to or greater than the Net Available Cash applied pursuant to this clause (A) and such First-Priority Assets are concurrently with the acquisition added to the First-Priority Collateral securing the Securities and PROVIDED FURTHER that pending the final application of any such Net Available Cash, it must be deposited in a Notes Collateral Account and pledged as additional First-Priority Collateral;
(B) second, within 365 days from the later of such Asset Disposition or the receipt of such Net Available Cash (or, in the case of Foreign Subsidiary Asset Dispositions, 545 days), to the extent of the balance of such Net Available Cash after such application in accordance with clause (A), to make an Offer (as defined below) to purchase First-Priority Obligations pursuant to and subject to the conditions set forth in Section 4.06(c); and
(C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) (other than the second proviso thereto) and (B), for any general corporate purpose not restricted by the terms of this Indenture.
(b) The Company will not, and will not permit any Restricted Subsidiary to, make any Asset Disposition (other than an Asset Disposition of First-Priority Collateral) unless:
(i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value of the Capital Stock and assets subject to such Asset Disposition, (ii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of (A) cash or Temporary Cash Investments, (B) properties and assets to be owned by the Company or any Restricted Subsidiary and used in a Permitted Business or (C) Capital Stock in one or more Persons engaged in a Permitted Business that are or thereby become Restricted Subsidiaries of the Company, and (iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be):
(A) first, (i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay repay, redeem or purchase such Bank any Credit Agreement Obligations or any Indebtedness Incurred by a Subsidiary of the Company that is not a Note Guarantor, or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest reinvest in Replacement Additional Assets within (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the applicable Application Period; and
(b) second, to Company or another Restricted Subsidiary or the extent of application by the balance Company of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”received by a Restricted Subsidiary of the Company), is applied by the Company or such Restricted Subsidiaryin each case within 365 days (or, as in the case may beof Foreign Subsidiary Asset Dispositions, toward an offer to purchase Notes as set forth in 545 days) from the next succeeding paragraph; providedlater of such Asset Disposition or the receipt of such Net Available Cash, however, PROVIDED that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) aboveCash, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On ;
(B) second, within 365 days from the 366th day after an later of such Asset Disposition or the receipt of such Net Available Cash (or, in the case of Foreign Subsidiary Asset Dispositions, 545 days), to the extent of the balance of such Net Available Cash after such application in accordance with clause (A), to make an Offer (as defined below) to purchase Securities pursuant to and subject to the conditions set forth in Section 4.06(c); PROVIDED, HOWEVER, that if the Company elects (or is required by the terms of any other Senior Indebtedness) such earlier dateOffer may be made ratably to purchase the Securities and such other Senior Indebtedness of the Company; and
(C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) (other than the proviso thereof) and (B), for any general corporate purpose not restricted by the terms of this Indenture; PROVIDED, HOWEVER, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (B) above, the Company or such 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, as repaid or purchased. Notwithstanding the Board foregoing provisions of Directors this Section 4.06, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash from Asset Dispositions that are not Asset Dispositions of First-Priority Collateral in accordance with this Section 4.06 except to the extent that the aggregate Net Available Cash from all such Asset Dispositions since the Original Issue Date that is not applied in accordance with this Section 4.06 exceeds $10.0 million since the Original Issue Date. For the purposes of this Section 4.06, the following are deemed to be cash: (A) the assumption of any liabilities of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary determines from all liability on such liabilities in connection with such Asset Disposition; PROVIDED that, with respect to any Asset Disposition of First-Priority Collateral, such liabilities constituted Trade Payables or First-Priority Obligations and (B) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Net Available Cash will not Company or such Restricted Subsidiary into cash. For the purposes of this Section 4.06, any sale by the Company or a Restricted Subsidiary of the Capital Stock of a Note Guarantor that owns assets constituting First-Priority Collateral or Second-Priority Collateral shall be applied deemed to be a sale of such First-Priority Collateral or Second-Priority Collateral (or, in the event of a Note Guarantor that owns assets that include both First-Priority Collateral and Second-Priority Collateral, a separate sale of such First-Priority Collateral and a separate sale of such Second-Priority Collateral). In the event of any such sale (or a sale of assets that includes both First-Priority Collateral and Second-Priority Collateral), the proceeds received by the Company and the Restricted Subsidiaries in respect of such sale shall be allocated to the First-Priority Collateral and the Second-Priority Collateral in accordance with clause (3)(a) their respective fair market values, which shall be determined by Board of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make Directors or an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required independent third party as provided by the terms of the Intercreditor Agreement.
(c) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Indebtedness) pursuant to Section 4.06(a)(iv)(B) or 4.06(b)(iii)(B), the Company shall be required to purchase Securities (and other Senior Indebtedness) tendered pursuant to an offer by the Company for the Securities (and other Senior Indebtedness) (the "Offer") at a purchase price of (i) in the case of Non-Consenting Securities, 100% of their Accreted Value or principal amount plus accrued and unpaid interest, including Additional Interest, if any, to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date) or (ii) in the case of all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess ProceedsSecurities, at an offer price in cash in an amount equal to 100% of the sum of their principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest interest, including Additional Interest, if any, 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 each case, in accordance with the procedures (including proration in the event of oversubscription) set forth herein in Section 4.06(d). If the aggregate purchase price of Securities (and other Senior Indebtedness) tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of the Securities (and other Senior Indebtedness), the Company shall apply the remaining Net Available Cash for any general corporate purpose not restricted by the terms of this Indenture. The Company shall not be required to make an Offer for Securities (and other Senior Indebtedness) pursuant to this Section 4.06 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 4.06(a)(iv)(A) or 4.06(b)(iii)(A)) is less than $10.0 million for any particular Asset Disposition since the agreements governing Original Issue Date (which lesser amount shall be carried forward for purposes of determining whether an Offer is required with respect to the Pari Passu NotesNet Available Cash from any subsequent Asset Disposition). Upon completion of the Offer, the amount of Net Available Cash shall be reduced to zero.
(d) (i) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to proration as applicable, hereinafter described in each case the event the Offer is oversubscribed) in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in at the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, by first class mail, a notice to the Trustee and to each Holder at its registered addressprice. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum shall include (1) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (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 enable such Holder to tender Notes Securities 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, together with the form entitled “Option of Holder address referred to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Asset Disposition Purchase Date;
clause (7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchasedd)(iii);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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 (Uniplast Industries Co)
Limitation on Sales of Assets and Subsidiary Stock. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, consummate any sale, lease, transfer or other disposition (or series of related sales, leases, transfers or dispositions) by the Company or any Restricted Subsidiary, including any disposition by means of a merger, consolida tion or similar transaction (each referred to for the purposes of this definition as an "Asset Disposition unlessDisposition"), of:
(1a) any shares of Capital Stock of a Restricted Subsidiary (other than directors' qualifying shares or shares required by applicable law to be held by a Person other than the Company or a Restricted Subsidiary);
(b) all or substantially all the assets of any division or line of business of the Company or any Restricted Subsidiary;
(c) any other assets of the Company or any Restricted Subsidiary outside of the ordinary course of business of the Company or such Restricted Subsidiary;
(d) any Investment in a Strategic Alliance Client; or
(e) any Excess Spread Receivables; other than, in the case of (a), (b), (c), (d) and (e), above, (i) an Asset Disposition by a Restricted Subsidiary to the Company or by the Company or a Restricted Subsidiary to a Restricted Subsidiary or (ii) an Asset Disposition (including related assets) for an aggregate consideration of $1,000,000 or less, unless (A) the Company or such Restricted SubsidiarySubsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including the value of all non-cash consideration), as determined in good faith by the case may beBoard of Directors, receives consideration (both cash and non cash) equal to not less than the Fair Market Value (such ▇▇▇▇ ▇▇▇▇▇▇ Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(2) Disposition and at least 7585% of the consideration from such Asset Disposition therefor received by the Company or such Restricted Subsidiary, as the case may be, Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause cash equivalents, and (2), each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s then most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3B) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be,
) (ix) to the extent the Company elects, to acquire Additional Assets, either directly or any through a Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 180 days from the later of the date of such Asset Disposition (such period, or the “Application Period”), unless to the extent receipt of such Net Available Cash is otherwise used in accordance with clause Cash, and (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if anyy) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) second, to the extent of the balance of the such Net Available Cash after application in accordance with clause (a) above (such balance, “Excess Proceeds”x), is applied to permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.07 of the Credit Agreement and to make any prepayments required by such Section in connection with such reduction pursuant to the Credit Agreement. Notwithstanding the foregoing provisions of this Section, the Company or such and the Restricted Subsidiary, as the case may be, toward an offer Subsidiaries shall not be required to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of apply any such Net Available Cash in accordance accor dance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition (or such earlier date, if any, as the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required except to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness with the proceeds from any 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 purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount Net Available Cash from all Asset Dispositions which has not been applied in accordance with this paragraph exceeds $10,000,000. Pending application of Notes and Pari Passu Notes so validly tendered and not properly withdrawn Net Available Cash pursuant to an Asset Disposition Offer is less than the Excess Proceedsthis Section, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds Net Available Cash shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except applied (i) to prepay outstanding Loans under and as defined in the Credit Agreement and (ii) to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase excess of Net Available Cash over the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 outstanding Loans (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, 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 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 4.15;
(2) the Asset Disposition Offer Amount and the Asset Disposition Purchase Date;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a depository, if appointed by the Company, or the Paying Agent at the address specified as defined in the notice at least three days before the Asset Disposition Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company, the Depository or the Paying Agent, as the case may be, receives, not later than the second business day prior to the Asset Disposition Purchase 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 his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchasedCredit Agreement);
(9) 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 transfer); and
(10) all other procedures, if any, determined by the Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a 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 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 and Pari Passu Notes or portions of such Notes and Pari Passu 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 Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15 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 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 will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, 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 $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company 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 Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.15, and shall comply with the provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company will 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 Notes pursuant to this Section 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.15, 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 conflictPermitted Investments.
Appears in 1 contract
Sources: Letter of Credit and Reimbursement Agreement (Contifinancial Corp)