Limitation on Sales of Assets and Subsidiary Stock Sample Clauses: 1k Samples

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Sale unless: (i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale 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 Sale (which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions) involving in excess of $1,000,000) and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents and is received at the time of such sale and (ii) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied by the Company (or such Restricted Subsidiary, as the case may be) within 270 days from the date of such Asset Sale either: (A) to prepay, repay, redeem or purchase any Indebtedness that by its terms is not subordinate to the Notes or any Guarantee and, in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and (B) to: (1) make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash not applied within 270 days after the consummation of an Asset Sale as provided in clauses (A), (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis the principal amount of Notes equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon to the date of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Indenture (Fresh Foods Inc)

Limitation on Sales of Assets and Subsidiary Stock. (a) The ~~Company shall~~ Parent Borrower will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the ~~Company~~ Parent Borrower or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ 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 ~~Sale (which~~ Disposition, as such fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) may be determined (and shall be ~~determined~~ determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $40,000,000) in good faith by the ~~Board~~ Borrower Representative, whose determination shall be conclusive (including as to the value of ~~Directors for~~ all noncash consideration); (ii) in the case of any ~~transaction~~ Asset Disposition (or series of ~~transactions~~related Asset Dispositions) ~~involving in excess~~ having a fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) of $~~1,000,000) and~~ 40,000,000 or more, at least 7575.0% of the consideration 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 ~~therefor~~ by the ~~Company~~ Parent Borrower or such Restricted Subsidiary is in the form of ~~cash or Cash Equivalents and is received at the time of such sale~~ cash; and (iiiii) to the extent required by Subsection 8.4(b), an amount equal to ~~100~~100.0% of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the ~~Company~~ Parent Borrower (or ~~such~~ any Restricted Subsidiary, as the case may be) as provided therein. (b) In the event that on or after the Closing Date the Parent Borrower or any Restricted Subsidiary shall make an Asset Disposition or a Recovery Event in respect of Collateral shall occur, subject to Subsection 8.4(a), an amount equal to 100.0% of the Net Available Cash from such Asset Disposition or Recovery Event shall be applied by the Parent Borrower (or any Restricted Subsidiary, as the case may be) as follows: (i) first, either (x) if the Parent Borrower or such Restricted Subsidiary elects, to the extent such Asset Disposition or Recovery Event is an Asset Disposition or Recovery Event of assets that constitute ABL Priority Collateral, to purchase, redeem, repay or prepay, to the extent the Parent Borrower or any Restricted Subsidiary is required by the terms thereof, Indebtedness under the Senior ABL Facility or (in the case of letters of credit, bankers’ acceptances or other similar instruments issued thereunder) cash collateralize any such Indebtedness within ~~270 days from~~ the time period required by such Indebtedness after the later of the date of such Asset ~~Sale either:~~Disposition or Recovery Event, as the case may be, and the date of receipt of such Net Available Cash or (y) to the extent the Parent Borrower or such Restricted Subsidiary elects (by delivery of an officer’s certificate by a Responsible Officer to the Administrative Agent) to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Parent Borrower or another Restricted Subsidiary) within (x) 365 days after the later of the date of such Asset Disposition or Recovery Event, as the case may be, and the date of receipt of such Net Available Cash (such period the “Reinvestment Period”) or, (y) if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 365 days to complete and is subject to a binding written commitment entered into during the Reinvestment Period, an additional 180 days after the last day of the Reinvestment Period (it being understood and agreed that if no such investment is made within the Reinvestment Period as extended by this clause (y), the Borrowers shall make the prepayments required by Subsection 8.4(b)(ii) on the earlier to occur of (I) the last day of such Reinvestment Period as extended by this clause (y) and (II) the date the Borrower Representative elects not to pursue such investment); (ii) second, (1) if no application of Net Available Cash election is made pursuant to preceding clause (i) with respect to such Asset Disposition or Recovery Event or (2) if such election is made to the extent of the balance of such Net Available Cash or equivalent amount after application in accordance with Subsection 8.4(b)(i), within ten Business Days after the end of the Reinvestment Period specified in clause (i) above (as extended pursuant to clause (y) of such clause (i)) (x) to the extent such Asset Disposition or Recovery Event is an Asset Disposition or Recovery Event of assets that constitute Collateral, to purchase, redeem, repay, prepay, make an offer to prepay or repurchase, or deliver a notice of redemption, in accordance with Subsection 4.4(e)(i) (subject to Subsection 4.4(h)) or the agreements or instruments governing the relevant Indebtedness described in clause (B) below subject to any provision under such agreement or instrument analogous to Subsection 4.4(h)), as applicable, (A) the Term Loans and (B) to ~~prepay~~the extent the Parent Borrower or any Restricted Subsidiary is required by the terms thereof any Pari Passu Indebtedness on a pro rata basis with the Term Loans and (y) to the extent such Asset Disposition is an Asset Disposition of assets that do not constitute Collateral, to purchase, redeem, repay, ~~redeem~~ prepay, make an offer to prepay or ~~purchase~~ repurchase, or deliver a notice of redemption, in accordance with Subsection 4.4(e)(i) (subject to Subsection 4.4(h)) or the agreements or instruments governing any relevant Indebtedness ~~that by its terms is not subordinate~~ permitted under Subsection 8.1 (subject to any provision under such agreement or instrument analogous to Subsection 4.4(h)), as applicable, (A) the Term Loans and (B) to the ~~Notes~~ extent the Parent Borrower or any ~~Guarantee and~~Restricted Subsidiary is required by the terms thereof, any other Indebtedness (other than Indebtedness subordinated in right of payment to the ~~case of any such Indebtedness under any revolving credit facility, effect~~ Term Loan Facility Obligations) on a ~~permanent reduction in~~ pro rata basis with the ~~availability under such revolving credit facility~~Term Loans; and (Biii) ~~to:~~ third, to the extent of the balance of such Net Available Cash or equivalent amount after application in accordance with Subsections 8.4(b)(i) and (ii) above, to fund (to the extent consistent with any other applicable provision of this Agreement) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of Junior Debt); provided, however, that (1) ~~make~~ in connection with any prepayment, repayment, purchase or redemption of Indebtedness pursuant to clause (ii) above, the Parent 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, purchased or redeemed; (2) the Parent Borrower (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that, such investment shall be made no earlier than the earliest of notice of the relevant Asset Disposition to the Administrative Agent, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in ~~properties or assets that replace~~ accordance with Subsection 8.4(b)(i) above with respect to such Asset Disposition; and (3) the ~~properties or assets that were~~ percentage first set forth above in this Subsection 8.4(b) shall be reduced to (x) 50.0% if the ~~subject~~ Consolidated First Lien Leverage Ratio at the time of such Asset ~~Sale~~ Disposition (or, at the Parent Borrower’s option, on the date a legally binding commitment for such Asset Disposition is entered into) or Recovery Event would be less than or equal to 2.75:1.00 and (y) 0.0% if the Consolidated First Lien Leverage Ratio at the time of such Asset Disposition (or, at the Parent Borrower’s option, on the date a legally binding commitment for such Asset Disposition is entered into) or Recovery Event would be less than or equal to 2.00:1.00, in ~~properties~~ each case, after giving pro forma effect thereto and to any application of Net Available Cash as set forth herein. (c) Notwithstanding the foregoing provisions of this Subsection 8.4, the Parent Borrower and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or ~~assets~~ equivalent amount in accordance with this Subsection 8.4 except to the extent that ~~will~~ (x) the aggregate Net Available Cash from all Asset Dispositions and Recovery Events in respect of Collateral or equivalent amount that is not applied in accordance with this Subsection 8.4 exceeds $32,000,000, in which case the Parent Borrower and its Subsidiaries shall apply all such Net Available Cash from such Asset Dispositions and Recovery Events or equivalent amount in accordance with Subsection 8.4(b) or (y) the terms of any Pari Passu Indebtedness would require Net Available Cash or the equivalent amount from such Asset Sales and Recovery Events to be ~~used in a Related Business or~~applied to purchase, redeem, repay or prepay such Indebtedness prior to reaching such $32,000,000 threshold. (d) For the purposes of Subsection 8.4(a)(ii), the following are deemed to be cash: (1) Temporary Cash Investments and Cash Equivalents, (2) ~~acquire~~ the ~~Capital~~ assumption of Indebtedness of the Parent Borrower (other than Disqualified Stock of ~~a Person~~ the Parent Borrower) or any Restricted Subsidiary and the release of the Parent 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 ~~becomes~~ is no longer a Restricted Subsidiary as a result of ~~the acquisition of~~ such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash not applied within 270 days after the consummation of an Asset Sale as provided in clauses (A), (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer to an Holders (an "Asset Sale Offer")Disposition, to ~~purchase, on a pro rata basis~~ the extent that the Parent Borrower and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of ~~Notes equal~~ such Indebtedness in ~~amount~~ connection with such Asset Disposition, (4) securities received by the Parent Borrower or any Restricted Subsidiary from the transferee that are converted by the Parent Borrower or such Restricted Subsidiary into cash within 180 days, (5) consideration consisting of Indebtedness of the Parent Borrower or any Restricted Subsidiary, (6) Additional Assets, and (7) any Designated Noncash Consideration received by the Parent Borrower or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to ~~the Excess Proceeds~~ this clause (~~and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"~~7), ~~at a purchase price in cash in~~ not to exceed an aggregate amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon to the date of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time ~~any non-cash consideration received by~~ outstanding equal to the ~~Company or any Subsidiary~~ greater of $93,500,000 and 5.50% of Consolidated Total Assets (with the Fair Market Value of each item of Designated Noncash Consideration being measured on the date a legally binding commitment for such Asset Disposition (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes 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 covenantvalue). (e) ~~Within 30 calendar days after~~ In connection with any Asset Disposition permitted under this Subsection 8.4 or a Disposition that is excluded from the ~~date the amount~~ definition of ~~Excess Proceeds exceeds $5.0 million~~“Asset Disposition”, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered NotesAdministrative Agent shall, and the ~~date Notes are to be purchased pursuant to~~ Lenders hereby authorize the ~~Asset Sale Offer (~~Administrative Agent to, execute such releases of Liens and take such other actions as the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults Borrower Representative may reasonably request in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, connection with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11foregoing. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Credit Agreement (SiteOne Landscape Supply, Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted ~~Subsidiary~~ Subsidiaries to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i1) the Company or such Restricted ~~Subsidiary~~ Subsidiary, as the case may be, receives consideration ~~at the time~~ (including by way of ~~such Asset Sale~~ relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (~~including~~ such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as to determined in good faith by the ~~value~~ Board of ~~all non-cash consideration)~~ Directors of the Company, of the shares and assets subject to such Asset ~~Sale~~ Disposition (~~which fair market value shall be determined~~ including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); (2) in ~~good faith by the Board of Directors for~~ any ~~transaction (~~such Asset Disposition, or series of ~~transactions) involving in excess of $1,000,000) and~~ 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 (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received ~~therefor~~ by the Company or such Restricted ~~Subsidiary~~ Subsidiary, as the case may be, is in the form of cash or Cash ~~Equivalents and is received at the time of such sale~~ Equivalents; and (ii3) an amount equal to 100% of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be~~) within 270 days from the date of such Asset Sale either~~: (i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness), (A) to prepay, ~~repay, redeem~~ repay or purchase any Indebtedness of a Non-Guarantor or that is secured by ~~its terms is not subordinate~~ a Lien (in each case, other than Indebtedness owed to the Company or any Restricted Subsidiary) or Indebtedness under the Second Lien Notes or the Credit Agreement (or any ~~Guarantee and~~Refinancing Indebtedness in respect thereof) within 450 days from the later of (1) the date of such Asset Disposition and (2) the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (i), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be reduced in an amount equal to the principal amount so prepaid, repaid or purchased; or (B) to prepay, repay or purchase Pari Passu Indebtedness at a price of no more than 100% of the principal amount of such Pari Passu Indebtedness plus accrued and unpaid interest to the date of such prepayment, repayment or purchase; provided further that, to the extent the Issuer redeems, repays or repurchases Pari Passu Indebtedness pursuant to this clause (B), the Issuer shall equally and ratably reduce Obligations under the Notes as provided under Section 5.7, through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; and/or (ii) to the extent the Company or such Restricted Subsidiary elects, to invest in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary) within 450 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Company that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 450th day; provided that, pending the final application of any such Net Available Cash in accordance with clause (i) or clause (ii) in Section 3.5(a)(3), the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise use such Net Available Cash in any manner not prohibited by this Indenture; provided further that notwithstanding the foregoing, in the ~~case of any such Indebtedness under any revolving credit facility~~event that after giving pro forma effect to the LifeCell Disposition the Consolidated Total Leverage Ratio is less than or equal to 1.5 to 1.0, effect a permanent reduction in the availability under such revolving credit facility; and (B) to: (1) make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (ASection 3.5(a)(2) and (B)3) shall not apply with respect to the LifeCell Disposition. (b) Any Net Available Cash from Asset Dispositions that is not applied ~~within 270 days after the consummation of an Asset Sale~~ or invested or committed to be applied or invested as provided in ~~clauses (A), (B) or (C) of~~ the preceding paragraph ~~(a) above~~ will be deemed to constitute "“Excess Proceeds~~." When~~ ” under this Indenture. On the 451st day after an Asset Disposition, if the aggregate amount of Excess Proceeds under this Indenture exceeds $~~5.0~~ 50.0 million, the ~~Company~~ Issuer will within 10 Business Days be required to make an offer (“Asset Disposition Offer”) to an all Holders ~~(an "Asset Sale Offer")~~of Notes issued under this Indenture and, to ~~purchase~~the extent the Issuer elects, ~~on a pro rata basis~~ to all holders of other outstanding Pari Passu Indebtedness, to purchase the maximum principal amount of Notes ~~equal in amount~~ and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess ~~Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount")~~Proceeds, at ~~a purchase~~ an offer price in ~~cash~~ respect of the Notes in an amount equal to 100% of the principal amount ~~thereof~~ of the Notes and Pari Passu Indebtedness, in each case, plus accrued and unpaid ~~interest and Liquidated Damages thereon to~~ interest, if any, to, but not including, the date of ~~purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date)~~purchase, in accordance with the procedures set forth in this ~~Indenture~~Section or the agreements governing the Pari Passu Indebtedness, as applicable, and, with respect to the Notes, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. The Issuer will deliver notice of such Asset Disposition Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with the ~~following standards:~~procedures of DTC, describing the transaction or transactions that constitute the Asset Disposition and offering to repurchase the Notes for the specified purchase price on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by this Indenture and described in such notice. (ic) If To the extent that the aggregate ~~principal~~ amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, and Pari Passu Indebtedness so ~~that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes~~ validly tendered and not properly withdrawn pursuant to ~~such~~ an Asset ~~Sale~~ Disposition Offer is less than the Excess Proceeds, the ~~Company~~ Issuer may use any remaining Excess Proceeds ~~following~~ for any purpose not prohibited by this Indenture. If the ~~completion~~ aggregate principal amount of the Notes surrendered in any Asset ~~Sale~~ Disposition Offer ~~for general corporate purposes (subject~~ by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Excess Proceeds shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the ~~other provisions~~ basis of ~~this Indenture)~~the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. Upon completion of an any Asset ~~Sale~~ Disposition Offer, the amount of Excess Proceeds ~~then required to be otherwise applied in accordance with this covenant~~ shall be reset to at zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) ~~If at~~ To the extent that any ~~time any non-cash consideration~~ portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than U.S. dollars, the amount thereof payable in respect of the Notes shall not exceed the net amount of funds in U.S. dollars that is actually received by the Company upon converting such portion into U.S. dollars. (e) For the purposes of Section 3.5(a)(2) hereof, the following will be deemed to be cash: (i) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Company or a Restricted Subsidiary (other than Subordinated Indebtedness of the Company or a Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition; (ii) securities, notes or other obligations received by the Company or any Restricted Subsidiary of the Company from the transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Disposition; (iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition; (iv) consideration consisting of Indebtedness of the Company (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company or any Restricted Subsidiary; and (v) any Designated Non-Cash Consideration received by the Company or any Restricted Subsidiary in such Asset ~~Sale~~ Dispositions having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section 3.5 that is ~~converted into or sold or otherwise disposed~~ at that time outstanding, not to exceed the greater of ~~for cash, then such conversion or disposition shall be deemed~~ $150.0 million and 1.75% of Total Assets (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to ~~constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied~~ subsequent changes in ~~accordance with this covenant~~value). (ef) ~~Within 30 calendar days after~~ Upon the ~~date the amount~~ commencement of ~~Excess Proceeds exceeds $5.0 million~~an Asset Disposition Offer, the ~~Company~~Issuer shall send, or cause to be sent, by first class mail, a notice to the Trustee ~~at the request~~ and ~~expense of the Company, shall send~~ to each Holder ~~by first-class mail~~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, ~~postage prepaid~~which shall govern the terms of the Asset Disposition Offer, ~~a notice prepared by the Company stating~~shall state: (i1) that an the Asset ~~Sale~~ Disposition Offer is being made pursuant to this Section ~~4.11~~ 3.5 and ~~that~~ that, to the extent lawful, all Notes ~~that are timely~~ tendered ~~will~~ and not withdrawn shall be accepted for ~~payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer~~payment (unless prorated); (ii2) the Asset ~~Sale Offer Amount~~Disposition payment amount, the ~~amount of Excess Proceeds that are available to be applied to purchase tendered Notes~~Asset Disposition offered price, and the date on which Notes ~~are to~~ tendered and accepted for payment shall be ~~purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date")~~purchased, which date shall be ~~a Business Day no earlier than~~ at least 30 ~~calendar~~ days ~~nor~~ and not later than 60 ~~calendar~~ days ~~subsequent to~~ from the date such ~~notice~~ notices is ~~mailed~~mailed (the “Asset Sale Payment Date”); (~~iii~~3) that any Notes ~~or portions thereof~~ not tendered or accepted for payment ~~will~~ shall continue to accrue ~~interest~~interest in accordance with the terms thereof; (iv4) that, unless the ~~Company~~ Issuer defaults in ~~the payment of the Asset Sale Offer Amount with respect thereto~~making such payment, ~~all~~ any Notes ~~or portions thereof~~ accepted for payment pursuant to the Asset ~~Sale~~ Disposition Offer shall cease to accrue interest ~~from~~ on and after the Asset Sale ~~Purchase~~ Payment Date; (v5) that ~~any Holder~~ Holders electing to have any Notes ~~or portions thereof~~ purchased pursuant to ~~the~~ any Asset ~~Sale~~ Disposition Offer ~~will~~ shall be required to surrender ~~such~~ the Notes, with the form entitled "“Option of Holder to Elect Purchase" ” on the reverse of ~~such Notes~~ the Note completed, to the Paying Agent at the address specified in the notice ~~prior to the close of business on the third~~ at least three Business ~~Day preceding~~ Days before the Asset ~~Sale Purchase~~ sale Payment Date; (vi6) that ~~any Holder~~ Holders shall be entitled to withdraw ~~such~~ their election if the Paying Agent receives, not later than ~~the close of business on the second~~ two Business ~~Day preceding~~ Days prior to the Asset Sale ~~Purchase~~ Payment Date, a ~~facsimile transmission or letter,~~ notice setting forth the name of the Holder, the principal amount of ~~Notes~~ the Note the Holder delivered for ~~purchase,~~ purchase and a statement that such Holder is withdrawing ~~such Holder's~~ its election to have such ~~Notes or portions thereof purchased pursuant to the Asset Sale Offer~~Note purchased; (~~vii~~7) that ~~any Holder electing to have~~ if the aggregate principal amount of Notes ~~purchased pursuant to~~ surrendered by Holders exceeds the Asset ~~Sale Offer must specify~~ Disposition payment amount, the ~~principal amount~~ Issuer shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Issuer so that ~~is being tendered for purchase, which principal amount must be~~ only Notes in denominations of $2,000 or integral multiples of $1,000 ~~or an integral multiple thereof,~~in excess thereof shall be purchased); and (~~viii) if Certificated~~ 8) that Holders whose Notes ~~have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being~~ were purchased only in part ~~will~~ shall be issued new ~~Certificated~~ Notes equal in principal amount to the unpurchased portion of the ~~Certificated Note~~ Notes surrendered (or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11transferred by book-entry). (fg) If the Asset Sale Payment Date is on or after a record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. (h) On the Asset Sale Payment Date, the ~~Company shall~~ Issuer will, to the extent permitted by law, (i1) accept for payment ~~any~~ all Notes issued by it or portions thereof properly tendered ~~and selected for purchase~~ pursuant to the Asset ~~Sale Offer and Section 4.11(e~~Disposition Offer, (2) ~~hereof, (ii) irrevocably~~ deposit with the Paying ~~Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds,~~ Agent an amount equal to the aggregate Asset ~~Sale Offer Amount~~ Disposition payment in respect of all Notes or portions thereof so ~~accepted; and~~ tendered, and (~~iii~~3) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an ~~Officers'~~ Officer’s Certificate ~~listing~~ to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the ~~Company~~ Issuer. (i) The Issuer will comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and ~~accepted for payment~~any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Notes pursuant to this Section 3.5. ~~Subject to~~ To the extent that the provisions of ~~Section 4.01~~any securities laws or regulations conflict with the provisions of this Indenture, the ~~Paying Agent~~ Company will comply with the applicable securities laws and regulations and shall ~~promptly send~~ not be deemed to have breached its obligations under this Indenture by ~~first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions~~ virtue thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Indenture (Kinetic Concepts Inc)

Limitation on Sales of Assets and Subsidiary Stock. (a) The ~~Company shall~~ SPV Borrower, the US SPV Borrower and Ziggo Secured Finance II B.V. will not~~, and shall not permit any Restricted Subsidiary to~~, directly or indirectly, consummate any SPV Asset ~~Sale~~ Sale. 59836545_7 (b) The Company, UPC NL Holdco and an Affiliate Covenant Party will not, and will not permit any of the Restricted Subsidiaries to, make any Asset Disposition unless: (i1) the ~~Company~~ Company, UPC NL Holdco, an Affiliate Covenant Party or such Restricted ~~Subsidiary~~ Subsidiary, as the case may be, receives consideration ~~at the time~~ (including by way of ~~such Asset Sale~~ relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors or senior management of the Company (including as to the value of all non-cash consideration) ), of the shares and assets subject to such Asset ~~Sale~~ Disposition; (~~which fair market value shall be determined in good faith by~~ 2) unless the ~~Board of Directors for any transaction (or series of transactions) involving in excess of $1,000,000) and~~ 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 ~~therefor~~ by the ~~Company~~ Company, UPC NL Holdco, an Affiliate Covenant Party or such Restricted ~~Subsidiary~~ Subsidiary, as the case may be, is in the form of cash or Cash ~~Equivalents and is received at the time of such sale~~ Equivalents; and (ii3) an amount equal to 100% of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the ~~Company (~~Company, UPC NL Holdco, an Affiliate Covenant Party or such Restricted Subsidiary, as the case may be~~) within 270 days from the date of such Asset Sale either~~: (A) to the extent the Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness), to prepay, ~~repay, redeem~~ repay or purchase Senior Indebtedness of the Company, UPC NL Holdco, an Affiliate Covenant Party or any other Covenant Party (including the Proceeds Loan), or Indebtedness of a Restricted Subsidiary that ~~by its terms~~ is not ~~subordinate~~ a Covenant Party (in each case other than Indebtedness owed to the ~~Notes~~ Company, UPC NL Holdco, an Affiliate Covenant Party or an Affiliate of the Company) within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that, in connection with any ~~Guarantee and~~prepayment, repayment or purchase of Indebtedness pursuant to this clause (a), the Company, UPC NL Holdco, an Affiliate Covenant Party such Covenant Party or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) (except in the case of any ~~such Indebtedness under any~~ revolving ~~credit facility~~Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, ~~effect a permanent reduction in the availability under such revolving credit facility~~repaid or purchased; ~~and~~or (B) ~~to: (1) make~~ to the extent the Company, UPC NL Holdco, an ~~investment~~ Affiliate Covenant Party or such Restricted Subsidiary elects to invest in ~~properties~~ or ~~assets that replace~~ commit to invest in Additional Assets within 365 days from the ~~properties or assets that were~~ later of the ~~subject~~ date of such Asset ~~Sale~~ Disposition or the receipt of such Net Available Cash; provided, however, that any such reinvestment in ~~properties~~ Additional Assets made pursuant to a definitive agreement or ~~assets that will be used in~~ a ~~Related Business or (2) acquire~~ commitment approved by the ~~Capital Stock~~ Board of ~~a Person that becomes a Restricted Subsidiary as a result~~ Directors or senior management of the ~~acquisition~~ Company that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 6 months of such ~~Capital Stock~~365th day; 59836545_7 provided that pending the final application of any such ~~Person is, at the time it becomes a Restricted Subsidiary, engaged~~ Net Available Cash in ~~a Related Business; or (C) a combination of prepayment and investment permitted by clauses~~ accordance with clause (A) ~~and~~ or clause (B) of this Section 4.10(b)(3), the Company, UPC NL Holdco, an Affiliate Covenant Party and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Agreement. (bc) Any Net Available Cash from Asset Dispositions that is not applied ~~within 270 days after the consummation of an Asset Sale~~ or invested or committed to be applied as provided in ~~clauses (A), (B~~Section 4.10(b)(3) ~~or (C) of paragraph (a) above~~ will be deemed to constitute "“Excess Proceeds”.~~" When~~ (d) To the ~~aggregate amount~~ extent that the Company, UPC NL Holdco or an Affiliate Covenant Party is required pursuant to the terms of ~~Excess Proceeds exceeds $5.0 million,~~ the ~~Company will be required~~ Indentures (or any similar terms in an instrument or agreement governing Senior Indebtedness other than the Finance Documents) to make an offer to ~~an Holders~~ redeem or prepay the Indebtedness thereunder (an ~~"Asset Sale~~ “Excess Proceeds Redemption Offer"”), then the Company, UPC NL Holdco or an Affiliate Covenant Party shall include the Outstandings under the Facilities in such offer to ~~purchase~~prepay (and shall provide notice of such offer to the Facility Agent), on such that a ~~pro rata basis the principal amount~~ portion of ~~Notes equal in amount to~~ the Excess Proceeds (~~and not just~~ the “Prepayment Amount”) that is equivalent to the proportion that the aggregate amount ~~thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in an amount equal to 100%~~ of the Outstandings under the Facilities bears to the aggregate principal amount ~~thereof~~ of other Senior Indebtedness is available to be applied and is so applied in prepayment of the Outstandings plus accrued and unpaid interest ~~and Liquidated Damages thereon~~ owed to each Lender under the Facilities (to the ~~date~~ extent that such Lender accepts any such offer of ~~purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date~~prepayment), in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (iie) If To the ~~aggregate principal amount of Notes tendered pursuant~~ extent that the Company, UPC NL Holdco or an Affiliate Covenant Party is not required to ~~such Asset Sale Offer is less than~~ make an Excess Proceeds Redemption Offer, the Company, UPC NL Holdco or an Affiliate Covenant Party shall procure that the Excess ~~Proceeds~~Proceeds are applied in prepayment of the Outstandings plus accrued and unpaid interest under one or more Facilities selected by the Company. (f) Following compliance with the requirements of paragraph (d) and (e), the Company may use any remaining Excess Proceeds ~~following the completion of the Asset Sale Offer~~ for general corporate purposes ~~(subject to the other provisions of~~ in any manner not prohibited by this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset SaleAgreement. (cg) In For the ~~event~~ purposes of this Section 4.10, the ~~transfer~~ following will be deemed to be cash: (1) the assumption by the transferee of ~~substantially all~~ Indebtedness (~~but not all~~other than Subordinated Obligations) of the ~~property~~ Company, UPC NL Holdco or an Affiliate Covenant Party or Indebtedness of a Restricted Subsidiary and ~~assets~~ the release of the Company, UPC NL Holdco, an Affiliate Covenant Party or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition (in which case the Company ~~and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below~~will, ~~the successor corporation shall~~ without further action, be deemed to have ~~sold~~ applied such deemed cash to Indebtedness in accordance with Section 4.10(b)(3)(A)); (2) securities, notes or other obligations received by the ~~properties~~ Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary from the transferee that are convertible by the Company, UPC NL Holdco, an Affiliate Covenant Party or such Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Disposition; 59836545_7 (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company, UPC NL Holdco, an Affiliate Covenant Party and ~~assets~~ each other Restricted Subsidiary are released from any guarantee of payment of the ~~Company and its Subsidiaries~~ principal amount of such Indebtedness in connection with such Asset Disposition; (4) consideration consisting of Indebtedness of the Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary; (5) any Designated Non-Cash Consideration received by the Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value not ~~so transferred for purposes~~ to exceed 25.0% of ~~this covenant, and shall comply~~ the consideration from such Asset Disposition (excluding any consideration received from such Asset Disposition in accordance with ~~the provisions~~ clauses (1) to (4) of ~~this covenant~~ Section 4.10(g)) (with ~~respect to such deemed sale as if it were an Asset Sale. In addition,~~ the fair market value of ~~such properties and assets~~ each item of ~~the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available~~ Designated Non-Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee Consideration being measured at the ~~request~~ time received and ~~expense of the Company, shall send~~ without giving effect to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"subsequent changes in value), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x6) in addition to any Designated Non-Cash Consideration received pursuant to clause (5) of Section 4.10(g), Designated Non-Cash Consideration received by the Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, taken together with all other ~~information necessary to enable any Holder to tender Notes and to have such Notes purchased~~ Designated Non-Cash Consideration received pursuant to this ~~Section 4.11.~~ clause (f6) On that is at that time outstanding, not to exceed the ~~Asset Sale Payment Date, the Company shall~~ greater of €120.0 million and 5.0% of Total Assets (~~i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit~~ with the ~~Paying Agent, by 10:00 a.m., New York City time, on such date,~~ 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 immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agentvalue).

Appears in 1 contract

Sources: Additional Facility C2 Accession Deed (Liberty Global PLC)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company ~~shall~~ will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ Disposition at least equal to the ~~fair market value (including as to the value of all non-cash consideration)~~ Fair Market Value of the shares and assets subject to such Asset ~~Sale~~ Disposition, as such Fair Market Value (~~which fair market value shall~~ on the date a legally binding commitment for such Asset Disposition was entered into) may be determined in good faith by the ~~Board~~ Company, whose determination shall be conclusive (including as to the value of ~~Directors for~~ all noncash consideration); (ii) in the case of any ~~transaction~~ Asset Disposition (or series of ~~transactions~~related Asset Dispositions) ~~involving in excess~~ having a Fair Market Value (on the date a legally binding commitment for such Asset Disposition was entered into) of $~~1,000,000) and~~ 50.0 million or more, at least 7575.0% of the consideration 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) for such Asset Disposition, together with all other Asset Dispositions since the Closing Date (on a cumulative basis) received ~~therefor~~ by the Company or such Restricted Subsidiary is in the form of ~~cash or Cash Equivalents and is received at the time of such sale~~ cash; and (iiiii) ~~an amount equal~~ if such Asset Disposition involves the Disposition of Collateral, the Company shall apply the Net Available Cash of such Asset Disposition (or the applicable portion thereof) in accordance with the provisions of Section 2.11(b)(ii). Notwithstanding the foregoing provision in ‎Section 6.04(a)(iii), to ~~100%~~ the extent that repatriating any or all of the Net Available Cash from ~~such~~ any Asset ~~Sale~~ Disposition by a Foreign Subsidiary (x) would result in material adverse tax consequences to the Company or any of its Subsidiaries or (y) is ~~applied~~ prohibited or delayed by applicable local law from being repatriated to the United States (in the case of the foregoing clauses (x) and (y), as reasonably determined by the Company ~~(or such Restricted Subsidiary~~in good faith which determination shall be conclusive), as the ~~case may be) within 270 days from the date~~ portion of such ~~Asset Sale either:~~ Net Available Cash so affected will not be required to be applied in compliance with clause (Aiii) ~~to prepay~~of the first paragraph of this covenant, ~~repay, redeem or purchase any Indebtedness that~~ and such amounts may be retained by ~~its terms is not subordinate to~~ the ~~Notes or any Guarantee and~~applicable Foreign Subsidiary; provided that, in the case of this clause (y), the Company shall take commercially reasonable efforts to cause the applicable Foreign Subsidiary to take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation, and if such repatriation of any of such ~~Indebtedness under~~ affected Net Available Cash can be achieved such repatriation will be promptly effected and such repatriated Net Available Cash will be applied (whether or not repatriation actually occurs) in compliance with clause ‎(iii) of the first paragraph of this covenant. The time periods set forth in this covenant shall not start until such time as the Net Available Cash may be repatriated whether or not such repatriation actually occurs. Notwithstanding the foregoing provisions of this Section 6.04, the Company and the Restricted Subsidiaries shall not be required to apply any ~~revolving credit facility~~Net Available Cash or equivalent amount in accordance with this Section 6.04 except to the extent that the aggregate Net Available Cash from all Asset Dispositions of Collateral or equivalent amount that is not applied in accordance with this Section 6.04 exceeds $30.0 million For the purposes of ‎Section 6.04(a)(ii), ~~effect a permanent reduction in~~ the ~~availability under such revolving credit facility; and (B) to:~~ following are deemed to be cash: (1) ~~make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or~~ Temporary Cash Investments and Cash Equivalents; (2) ~~acquire~~ the ~~Capital~~ assumption of Indebtedness of the Company (other than Disqualified Stock of ~~a Person~~ the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition; (3) Indebtedness of any Restricted Subsidiary that ~~becomes~~ is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the ~~acquisition of such Capital Stock; provided~~ extent that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash not applied within 270 days after the consummation of an Asset Sale as provided in clauses (A), (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company ~~will be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis~~ and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of ~~Notes equal~~ such Indebtedness in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon to the date of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, connection with such ~~adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased.~~ Asset Disposition; (ii4) If the aggregate principal amount of Notes tendered pursuant to such Asset 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 (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration securities received by the Company or any Restricted Subsidiary ~~in connection with any Asset Sale is~~ from the transferee that are converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company ~~stating:~~ or such Restricted Subsidiary into cash within 180 days; (i5) ~~that~~ consideration consisting of Indebtedness of the Company or any Restricted Subsidiary; (6) Additional Assets; and (7) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset ~~Sale Offer is being made~~ Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this ~~Section 4.11 and that all Notes that are timely tendered will be accepted for payment~~clause, ~~subject~~ not to ~~proration if the~~ exceed an aggregate amount ~~of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant~~ at any time outstanding equal to the ~~Asset Sale Offer;~~ greater of $50.0 million and 1.25% of Consolidated Tangible Assets (~~ii)~~ with the ~~Asset Sale Offer Amount, the amount~~ Fair Market Value of ~~Excess Proceeds that are available to be applied to purchase tendered Notes, and~~ each item of Designated Noncash Consideration being measured on the date ~~Notes are to be purchased pursuant to the Asset Sale Offer~~ a legally binding commitment for such disposition (~~the "Asset Sale Purchase Date")~~or, which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted if later, for ~~payment will continue to accrue interest; (iv) that, unless the Company defaults in~~ the payment of ~~the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant~~ such item) was entered into and without giving effect to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified subsequent changes in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11value). (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: First Lien Credit Agreement (Victoria's Secret & Co.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The ~~Company shall~~ Borrower will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the ~~Company~~ Borrower or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ Disposition at least equal to the fair market value (as of the date on which a legally binding commitment for such Asset Disposition was entered into) of the shares and assets subject to such Asset Disposition, as such fair market value may be determined in good faith by the Borrower, whose determination shall be conclusive (including as to the value of all non-cash consideration); (ii) in the case of ~~the shares and assets subject to such~~ any Asset ~~Sale~~ Disposition (~~which~~ or series of related Asset Dispositions) having a fair market value ~~shall be~~ (as determined in good faith by the ~~Board~~ Borrower, whose determination shall be conclusive, as of ~~Directors~~ the date on which a legally binding commitment for ~~any transaction~~ such Asset Disposition was entered into) in excess of the greater of $177,500,000 and 20.00% of Four Quarter Consolidated EBITDA, at least 75.0% of the consideration therefor (excluding, in the case of an Asset Disposition (or series of ~~transactions~~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) ~~involving in excess of $1,000,000) and at least 75% of the consideration~~ received ~~therefor~~ by the ~~Company~~ Borrower or such Restricted Subsidiary for such Asset Disposition, when taken together with any consideration received by the Borrower or any Restricted Subsidiary in connection with any other Asset Dispositions since the Closing Date (on a cumulative basis), is in the form of ~~cash or Cash Equivalents~~ cash; and ~~is received at the time of such sale and~~ (iiiii) an amount equal to ~~100~~100.0% (as such percentage may be adjusted pursuant to clause (3) of the provisos to paragraph (b) or (c) below) of the Net Available Cash from such Asset ~~Sale~~ Disposition (such amount, the “Net Available Cash Amount”) is applied by the ~~Company~~ Borrower (or ~~such~~ any Restricted Subsidiary, as the case may be) in accordance with paragraph (b) or (c) below. (b) To the extent that such Net Available Cash Amount is from an Asset Disposition of any Collateral, such Net Available Cash is applied by the Borrower (or any Restricted Subsidiary, as the case may be) as follows: (i) first, either (x) to the extent that such Net Available Cash is from an Asset Disposition of any Collateral, and to the extent that the Borrower elects (or is required by the terms of any Indebtedness under the Senior Credit Facilities or the Senior Secured Notes Indenture), to prepay, repay or purchase any such Indebtedness or (in the case of 160 letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness within ~~270~~ 540 days ~~from~~ after the later of the date of such Asset ~~Sale either:~~ Disposition and the date of receipt of such Net Available Cash, or (Ay) to ~~prepay~~the extent that the Borrower or such Restricted Subsidiary elects, ~~repay, redeem or purchase any Indebtedness that~~ to invest in Additional Assets (including by ~~its terms is not subordinate to the Notes or any Guarantee and, in the case~~ means of ~~any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and (B) to: (1) make~~ an investment in ~~properties~~ Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Borrower or ~~assets that replace~~ another Restricted Subsidiary) within 540 days after the ~~properties or assets that were~~ later of the ~~subject~~ date of such Asset ~~Sale or~~ Disposition and the date of receipt of such Net Available Cash, or, if such investment in ~~properties or assets~~ Additional Assets is a project authorized by the Board of Directors that will ~~be used in a Related Business or~~ take longer than such 540 days to complete, the period of time necessary to complete such project; (2ii) ~~acquire~~ second, to the ~~Capital Stock of a Person that becomes a Restricted Subsidiary as a result~~ extent of the ~~acquisition~~ balance of such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash ~~not applied within 270 days~~ Amount after application in accordance with clause (i) above (such balance, the ~~consummation of an Asset Sale as provided in clauses (A~~“Excess Collateral Proceeds”), ~~(B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required~~ to make an offer to purchase the Term Loans and (to the extent the Borrower or such Restricted Subsidiary elects, or is required by the terms thereof) to make an ~~Holders (an "Asset Sale Offer"),~~ offer to purchase, ~~on a pro rata basis the principal amount of Notes equal in amount~~ redeem or repay and/or to ~~the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount")~~purchase, ~~at a purchase price in cash in an amount equal to 100%~~ redeem or repay any other Senior Indebtedness of the ~~principal amount thereof plus accrued~~ Borrower or a Restricted Subsidiary secured by Liens that rank pari passu with the Liens securing the Term Loan Facility Obligations, pursuant and ~~unpaid interest and Liquidated Damages thereon to the date of purchase (~~subject to the ~~right~~ conditions of ~~each Holder~~ this Agreement and the agreements or instruments governing such other Senior Indebtedness; and (iii) third, to the extent of ~~record on~~ the ~~relevant Record Date to receive interest due on the relevant Interest Payment Date),~~ balance of such Net Available Cash Amount after application in accordance with ~~the procedures set forth in this Indenture, and in accordance with the following standards:~~ clauses (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. and (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset 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 above (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available fundsincluding, an amount equal to the ~~Asset Sale Offer Amount~~ amount of any purchase, redemption or repayment contemplated by clause (ii) above that is declined or not accepted by any applicable holder) (the amount of such balance, “Declined Collateral Excess Proceeds”), to fund (to the extent consistent with any other applicable provision of this Agreement) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations); provided, however, that (1) in ~~respect~~ connection with any prepayment, repayment or purchase of ~~all Notes~~ Indebtedness pursuant to clause (i)(x) or ~~portions thereof so accepted;~~ (ii) above, the Borrower or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (~~iii~~if any) ~~deliver, or cause~~ to be ~~delivered,~~ permanently reduced in an amount equal to the ~~Trustee the Notes~~ principal amount so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, ~~to each Holder~~ repaid or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.purchased;

Appears in 1 contract

Sources: Term Loan Credit Agreement (Cornerstone Building Brands, Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The ~~Company shall~~ Borrower will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the ~~Company~~ Borrower or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ 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 ~~Sale (which~~ Disposition, as such fair market value (as of the date on which a legally binding commitment for such Asset Disposition was entered into) may be determined (and shall be ~~determined~~ determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $100.0 million) in good faith by the senior management of the Borrower or the Board of ~~Directors for~~ Directors, whose determination shall be conclusive (including as to the value of all noncash consideration); (ii) in the case of any ~~transaction~~ Asset Disposition (or series of ~~transactions~~related Asset Dispositions) ~~involving in excess~~ having a Fair Market Value (as of the date on which a legally binding commitment for such Asset Disposition was entered into) of $~~1,000,000) and~~ 100.0 million or more, at least 7575.0% of the consideration 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 ~~therefor~~ by the ~~Company~~ Borrower or such Restricted Subsidiary is in the form of ~~cash or Cash Equivalents and is received at the time of such sale~~ cash; and (iiiii) to the extent required by Subsection 8.4(b), an amount equal to ~~100~~100.0% of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the ~~Company~~ Borrower (or ~~such~~ any Restricted Subsidiary, as the case may be) as provided therein. (b) In the event that on or after the Restatement Effective Date the Borrower or any Restricted Subsidiary shall make an Asset Disposition or a Recovery Event shall occur, subject to Subsection 8.4(a), an amount equal to 100.0% of the Net Available Cash from such Asset Disposition or Recovery Event shall be applied by the Borrower (or any Restricted Subsidiary, as the case may be) as follows: (i) first, to the extent the Borrower or such Restricted Subsidiary elects (by delivery of an officer’s certificate by a Responsible Officer to the Administrative Agent promptly following such Asset Disposition or Recovery Event that it is exercising its reinvestment option under this Subsection 8.4(b)(i)) to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Borrower or another Restricted Subsidiary) within ~~270~~ 365 days ~~from~~ after the later of the date of such Asset ~~Sale either:~~Disposition or Recovery Event, as the case may be, and the date of receipt of such Net Available Cash (such period, the “Reinvestment Period”) or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 365 days to complete and is subject to a binding written commitment entered into during the Reinvestment Period, an additional 180 days after the last day of the Reinvestment Period (it being understood and agreed that if no such investment is made within the Reinvestment Period as extended by this clause (y), the Borrower shall make the prepayments required by Subsection 8.4(b)(ii) on the earlier to occur of (I) the last day of such Reinvestment Period and (II) the date the Borrower elects not to pursue such investment); (ii) second, (1) if no application of Net Available Cash election is made pursuant to preceding clause (i) with respect to such Asset Disposition or Recovery Event or (2) if such election is made to the extent of the balance of such Net Available Cash or equivalent amount after application in accordance with Subsection 8.4(b)(i), within ten Business Days after the end of the Reinvestment Period specified in clause (i) above (as extended pursuant to clause (y) of such clause (i)) (x) to the extent such Asset Disposition or Recovery Event is an Asset Disposition or Recovery Event of assets that constitute Collateral, to purchase, redeem, repay, prepay, make an offer to prepay or repurchase, or deliver a notice of redemption, in accordance with Subsection 4.4(b)(i) (subject to Subsection 4.4(d)) or the agreements or instruments governing the relevant Indebtedness described in clause (B) below (subject to any provision under such agreement or instrument analogous to Subsection 4.4(d)), as applicable, (A) the Term Loans and (B) to ~~prepay~~the extent the Borrower or any Restricted Subsidiary is required by the terms thereof, any Permitted Debt Exchange Notes, Additional Obligations and any Refinancing Indebtedness in respect of the foregoing with, in each case, a Lien on the Collateral ranking pari passu with the Liens securing the Term Facility Obligations on a pro rata basis with the Term Loans and (y) to the extent such Asset Disposition is an Asset Disposition of assets that do not constitute Collateral, to purchase, redeem, repay, ~~redeem~~ prepay, make an offer to prepay or ~~purchase~~ repurchase, or deliver a notice of redemption, in accordance with Subsection 4.4(b)(i) (subject to Subsection 4.4(d)) or the agreements or instruments governing any relevant Indebtedness ~~that by its terms is not subordinate~~ permitted under Subsection 8.1 (subject to any provision under such agreement or instrument analogous to Subsection 4.4(d)), as applicable, (A) the Term Loans and (B) to the ~~Notes~~ extent the Borrower or any ~~Guarantee and~~Restricted Subsidiary is required by the terms thereof, any other Indebtedness (other than Indebtedness subordinated in right of payment to the ~~case of any such Indebtedness under any revolving credit facility, effect~~ First Lien Obligations) on a ~~permanent reduction in~~ pro rata basis with the ~~availability under such revolving credit facility~~Term Loans; and (Biii) ~~to:~~third, to the extent of the balance of such Net Available Cash or equivalent amount after application in accordance with Subsections 8.4(b)(i) and (ii) above (including an amount equal to the amount of any prepayment otherwise contemplated by clause (ii) above in connection with such Asset Disposition or Recovery Event that is declined by any Lender), to fund (to the extent consistent with any other applicable provision of this Agreement) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of Junior Debt); provided, however, that in connection with any prepayment, repayment, purchase or redemption of Indebtedness pursuant to clause (ii) above, the 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, purchased or redeemed. (c) Notwithstanding the foregoing provisions of this Subsection 8.4, the Borrower and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Subsection 8.4 except to the extent that (x) the aggregate Net Available Cash from all Asset Dispositions and Recovery Events or equivalent amount that is not applied in accordance with this Subsection 8.4 exceeds $100.0 million, in which case the Borrower and its Subsidiaries shall apply all such Net Available Cash from such Asset Dispositions and Recovery Events or equivalent amount in accordance with Subsection 8.4(b) or (y) the terms of any Permitted Debt Exchange Notes, Additional Obligations or any Refinancing Indebtedness in respect of the foregoing with, in each case, a Lien on the Collateral ranking pari passu with the Liens securing the Term Loan Facility Obligations would require Net Available Cash or the equivalent amount to be applied to purchase, redeem, repay or prepay such Indebtedness prior to reaching such $100.0 million threshold. (d) For the purposes of Subsection 8.4(a)(ii), the following are deemed to be cash: (1) ~~make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or~~ Temporary Cash Investments and Cash Equivalents, (2) ~~acquire~~ the ~~Capital~~ assumption of Indebtedness of the Borrower (other than Disqualified Stock of ~~a Person~~ 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 ~~becomes~~ is no longer a Restricted Subsidiary as a result of ~~the acquisition of~~ such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash not applied within 270 days after the consummation of an Asset Sale as provided in clauses (A), (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer to an Holders (an "Asset Sale Offer")Disposition, to ~~purchase, on a pro rata basis~~ the extent that the Borrower and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of ~~Notes equal~~ such Indebtedness in ~~amount~~ connection with such Asset Disposition, (4) securities received by the Borrower or any Restricted Subsidiary from the transferee that are converted by the Borrower or such Restricted Subsidiary into cash within 180 days, (5) consideration consisting of Indebtedness of the Borrower or any Restricted Subsidiary, (6) Additional Assets, and (7) any Designated Noncash Consideration received by the Borrower or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to ~~the Excess Proceeds~~ this clause (~~and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"~~7), ~~at a purchase price in cash in~~ not to exceed an aggregate amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon to the date of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be outstanding equal to the ~~unpurchased portion~~ greater of ~~such Global Note; and~~ $425.0 million and 2.50% of Consolidated Total Assets (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the ~~Paying Agent, by 10:00 a.m., New York City time, on such date,~~ Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agentvalue).

Appears in 1 contract

Sources: Credit Agreement (Envision Healthcare Corp)

Limitation on Sales of Assets and Subsidiary Stock. (a) ~~The~~ Following the Closing, the Company and its Subsidiaries may make Asset Dispositions in an aggregate amount not to exceed $10 million in any fiscal year of the Company. (b) Following the Closing, the Company shall not, and shall not permit any ~~Restricted~~ Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale unless:~~ Disposition which, either alone or together with all other Asset Dispositions made by the Company and its Subsidiaries during such fiscal year, exceeds $10 million unless (i) the Company or such ~~Restricted~~ Subsidiary receives consideration at the time of such Asset ~~Sale~~ Disposition at least equal to the fair market value, as determined in good faith by the Board of Directors (if such fair market value is greater than $10,000,000), the determination of which shall be evidenced by a Board Resolution (including as to the value of all ~~non-~~non- cash ~~consideration)~~ consideration (if such fair market value is greater than $3,000,000)), of the shares and assets subject to such Asset ~~Sale~~ Disposition, (~~which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions~~ii) ~~involving in excess of $1,000,000) and~~ at least 75% of the consideration thereof received ~~therefor~~ by the Company or such ~~Restricted~~ Subsidiary is in the form of cash ~~or Cash Equivalents~~ and ~~is received at the time of such sale and~~ (iiiii) an amount equal to 100% of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the Company (or such ~~Restricted~~ Subsidiary, as the case may be) (A) first, to the extent the Company elects (or is required by the terms of any Senior Indebtedness), to prepay, repay or purchase Senior Indebtedness or Indebtedness (other than any Preferred Stock) of a Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 270 days from the later of the date of such Asset ~~Sale either: (A) to prepay, repay, redeem~~ Disposition or ~~purchase any Indebtedness that by its terms is not subordinate to~~ the ~~Notes or any Guarantee and, in the case~~ receipt of ~~any~~ such ~~Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility~~Net Available Cash; ~~and~~ (B) ~~to:~~ second, to the extent of the balance of Net Available Cash after application in accordance with clause (1A), to the extent the Company or such Subsidiary elects, to reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Subsidiary with Net Available Cash received by the Company or another Subsidiary) ~~make an investment in properties or assets that replace~~ within 270 days from the ~~properties or assets that were the subject~~ later of such Asset ~~Sale~~ Disposition or ~~in properties or assets that will be used in a Related Business or (2) acquire~~ the ~~Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition~~ receipt of such ~~Capital Stock~~Net Available Cash; ~~provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or~~ (C) ~~a combination~~ third, to the extent of ~~prepayment and investment permitted by~~ the balance of such Net Available Cash after application in accordance with clauses (A) and (B). , to make an Offer to purchase Securities pursuant to and subject to the conditions of Section 4.06(c), and (bD) ~~Any~~ fourth, to the extent of the balance of such Net Available Cash ~~not applied within 270 days~~ after ~~the consummation of an Asset Sale as provided~~ application in accordance with clauses (A), (B) or and (C) ), for any purpose not prohibited by the terms of ~~paragraph (a) above will~~ this Indenture. For the purposes of this Section, the following shall be deemed to ~~constitute "Excess Proceeds." When~~ be cash: (x) the ~~aggregate amount~~ assumption of ~~Excess Proceeds exceeds $5.0 million,~~ Indebtedness of the Company ~~will be required to make an offer to an Holders~~ (an "Asset Sale Offer"), to purchase, on a pro rata basis the principal amount of Notes equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in an amount equal to 100% other than Preferred Stock of the ~~principal amount thereof plus accrued~~ Company) or any Subsidiary and ~~unpaid interest and Liquidated Damages thereon~~ the release of the Company or such Subsidiary from all liability with respect to ~~the date of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date)~~such Indebtedness in connection with such Asset Disposition, ~~in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds~~ provided that the amount of ~~Excess Proceeds, the Trustee~~ such Indebtedness shall ~~select the Notes~~ not be deemed to be ~~purchased on a pro rata basis, based on~~ cash for the ~~principal amount~~ purpose of ~~Notes tendered, with such adjustments as may be deemed appropriate~~ the term "Net Available Cash," and (y) securities received by the ~~Trustee, so~~ Company or any Subsidiary from the transferee that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, are promptly converted by the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Saleor such Subsidiary into cash. (c) In the event of an Asset Disposition that requires the ~~transfer~~ purchase of ~~substantially all~~ Securities pursuant to Section 4.06(b)(iii)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (~~but~~ the "Offer") at a purchase price of 100% of their principal amount plus accrued interest to the Purchase Date in accordance with the procedures (including prorationing in the event of oversubscription) set forth in Section 4.06(b). If the aggregate purchase price of Securities tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of the Securities, the Company shall apply the remaining Net Available Cash in accordance with Section 4.06(b)(iii)(D). The Company shall not ~~all~~be required to make an Offer for Securities pursuant to this Section if the Net Available Cash available therefor (after application of the proceeds as provided in clauses (A) and (B) of Section 4.06(b)(iii)) is less than $5,000,000 for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). (1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorationing as hereinafter described in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain 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 ~~property~~ Company, the most recent subsequently filed Quarterly Report on Form 10-Q and ~~assets~~ 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 ~~its Subsidiaries as~~ (iii) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3). (2) Not later than the date upon which written notice of an ~~entirety~~ Offer is delivered to ~~a Person in a transaction permitted under Section 5.01 below~~the Trustee, the ~~successor corporation~~ Company shall ~~be deemed~~ deliver to ~~have sold~~ the ~~properties and assets~~ Trustee an Officers' Certificate as to (i) the amount of the ~~Company~~ Offer (the "Offer Amount"), (ii) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and ~~its Subsidiaries not so transferred for purposes~~ (iii) the compliance of ~~this covenant, and shall comply~~ such allocation with the provisions of ~~this covenant with respect to such deemed sale as if it were an Asset Sale~~Section 4.06(b). ~~In addition~~Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the ~~fair market value~~ Company shall deliver to the Trustee the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company and shall irrevocably deposit with the Trustee an amount of cash equal to the aggregate purchase price for the Securities tendered in the Offer, provided that such ~~properties and assets~~ amount shall not exceed the Offer Amount. The Trustee shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the ~~Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant~~purchase price. (d3) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder Holders electing to have ~~any Notes or portions thereof~~ a Security purchased ~~pursuant to the Asset Sale Offer~~ will be required to surrender ~~such Notes~~the Security, with ~~the~~ an appropriate form ~~entitled "Option of Holder to Elect Purchase" on the reverse of such Notes~~ duly completed, to the ~~Paying Agent~~ Company at the address specified in the notice at least 10 Business Days prior to the ~~close of business on the third Business Day preceding the Asset Sale~~ Purchase Date~~; (vi) that any Holder shall~~ . Holders will be entitled to withdraw ~~such~~ their election if the ~~Paying Agent~~ Trustee or the Company receives, not later than three Business Days prior to the ~~close of business on the second Business Day preceding the Asset Sale~~ Purchase Date, a telegram, facsimile transmission or ~~letter,~~ letter setting forth the name of the Holder, the principal amount of ~~Notes~~ the Security which was delivered for ~~purchase,~~ purchase by the Holder and a statement that such Holder is withdrawing ~~such Holder's~~ his election to have such ~~Notes or portions thereof purchased pursuant to~~ Security purchased. If, at the ~~Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to~~ expiration of the ~~Asset Sale~~ Offer ~~must specify~~ Period, the aggregate principal amount of Securities surrendered by Holders exceeds the Offer Amount, the Company shall select the Securities to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that ~~is being tendered for purchase~~only Securities in denominations of $1,000, ~~which principal amount must~~ or integral multiples thereof, shall be ~~$1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes~~ purchased). Holders whose ~~Certificated Notes~~ Securities are ~~being~~ purchased only in part ~~will~~ shall be issued new ~~Certificated Notes~~ Securities equal in principal amount to the unpurchased portion of the ~~Certificated Note or Notes~~ Securities surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f4) On or before the ~~Asset Sale Payment~~ Purchase Date, the Company shall (i) accept for payment ~~any Notes~~ the Securities or portions thereof that have been properly tendered pursuant to the offer made pursuant to this Section 4.06, (ii) deposit with the Trustee an amount of cash equal to the aggregate amount of the aggregate purchase price for the Securities and portions thereof properly tendered and ~~selected~~ accepted pursuant to clause (i) and shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the purchase date and (iii) deliver to the Trustee the Securities or portions thereof which have been properly tendered to and accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment of the purchase price to each tendering Holder. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder. (e) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Securities pursuant to this Section. To the ~~Asset Sale Offer~~ extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section ~~4.11(e~~by virtue thereof. (f) ~~hereof~~Notwithstanding anything to the contrary contained in this Section, (i) Hexcel Technologies, Inc. may transfer up to 15% of the outstanding partnership interests in HDP to DIC Technologies, Inc., (ii) ~~irrevocably deposit with~~ the ~~Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal~~ Company may sell the Specified Equipment to ~~the Asset Sale Offer Amount in respect~~ Ciba or any Affiliate of ~~all Notes or portions thereof so accepted;~~ Ciba and (iii) ~~deliver,~~ the Company or ~~cause~~ any Subsidiary may grant licenses in respect of intellectual property to ~~be delivered,~~ Ciba or any Subsidiary of Ciba pursuant to the ~~Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered~~ Strategic Alliance Agreement. (g) Notwithstanding anything to the ~~Company and accepted for payment. Subject to the provisions of Section 4.01~~contrary contained in this Section, the ~~Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The~~ Company shall ~~publicly announce~~ be deemed to have complied with Section 4.06(b)(iii)(A) if the ~~results~~ Net Available Cash from any sale or other disposition of any of the ~~Asset Sale Offer on~~ Specified Properties are applied to repay outstanding loans under the Credit Agreement (whether or ~~as soon as practicable after~~ not the ~~Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent~~commitments thereunder are reduced in connection therewith).

Appears in 1 contract

Sources: Indenture (Hexcel Corp /De/)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company ~~shall~~ will not, and ~~shall~~ will not permit any of its Restricted ~~Subsidiary~~ Subsidiaries to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale 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 Sale (which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions) involving in excess of $1,000,000) and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents and is received at the time of such sale and (ii) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied by the Company (or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); (2) immediately before and after giving effect to such Asset Disposition, no Event of Default has occurred and is continuing; (3) in any such Asset Disposition (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis), (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents or Designated Non-Cash Consideration (provided that all Designated Non-Cash Consideration at such time does not exceed the greater of (x) $120.0 million and (y) 25.0% of LTM EBITDA on a pro forma basis); and (4) within ~~270~~ 450 days from the later of (A) the date of such Asset Sale either: (A) to prepay, repay, redeem or purchase any Indebtedness that by its terms is not subordinate to the Notes or any Guarantee and, in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and Disposition and (B) ~~to: (1) make an investment in properties or assets that replace~~ the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result receipt of the acquisition of such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash ~~not applied within 270 days after~~ from such Asset Disposition (as may be extended by an Acceptable Commitment as set forth below, the ~~consummation of an Asset Sale as provided in clauses (A~~“Proceeds Application Period”), (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis the principal amount of Notes equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in an amount equal to 100% of ~~the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon~~ such Net Available Cash is applied, to the ~~date of purchase (subject to~~ extent the ~~right of each Holder of record on~~ Company or any Restricted Subsidiary, as the ~~relevant Record Date to receive interest due on the relevant Interest Payment Date)~~case may be, ~~in accordance with the procedures set forth in this Indenture, and in accordance with the following standards~~elects: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (iia) If the aggregate principal amount of Notes tendered pursuant to such Asset 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 (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to extent such ~~deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be~~ Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute are from an Asset ~~Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount~~ Disposition of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereofCollateral, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Indenture

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company ~~shall~~ will not, and ~~shall~~ will not cause or permit any of its Restricted ~~Subsidiary~~ Subsidiaries to, ~~directly or indirectly,~~ consummate ~~any~~ an Asset ~~Sale unless:~~ Disposition unless (i1) the Company or ~~such~~ the applicable Restricted ~~Subsidiary~~ Subsidiary, as the case may be, receives consideration at the time of such Asset ~~Sale~~ 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 Sale~~ sold or otherwise disposed of (~~which fair market value shall be~~ as determined in good faith by the Company's Board of Directors ~~for any transaction~~ or senior management of the Company), and (~~or series of transactions~~2)(A) ~~involving in excess of $1,000,000) and~~ at least 75% of the consideration received ~~therefor~~ by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents and is received at the time of such sale and (ii) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied by the Company (or such Restricted Subsidiary, as the case may be~~) within 270 days~~ , from such Asset Disposition shall be in the ~~date~~ form of cash or Temporary Cash Investments and is received at the time of such Asset Sale either: (A) to prepay, repay, redeem or purchase any Indebtedness that by its terms is not subordinate to the Notes or any Guarantee and, in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and disposition and (B) ~~to: (1) make an investment in properties or assets that replace the properties or assets that were the subject~~ at least 15% of such ~~Asset Sale or in properties or assets that will be used~~ consideration received if in a ~~Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition~~ form other than cash or Temporary Cash Investments is converted into or exchanged for cash or Temporary Cash Investments within 90 days of such ~~Capital Stock; provided~~ disposition. In the event and to the extent that ~~such Person is, at~~ the ~~time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any~~ Net Available Cash ~~not applied~~ received by the Company or any Restricted Subsidiary from one or more Asset Dispositions occurring on or after the Closing Date in any period of 12 consecutive months exceeds $5.0 million, then the Company shall (i) within ~~270~~ 180 days after the ~~consummation of~~ date such Net Available Cash so received exceeds such $5.0 million invest an ~~Asset Sale~~ amount equal to such excess in Additional Assets or in one or more Permitted Joint Ventures or Permitted Business Investments or (ii) apply an amount equal to such excess (to the extent not applied pursuant to clause (i)) as provided in ~~clauses~~ the following paragraphs of this Section 4.06. The amount of such excess Net Available Cash required to be applied during the applicable period and not applied (~~A), (B~~or designated by the Company as not to be so applied) ~~or (C)~~ as so required by the end of ~~paragraph (a) above will be deemed to~~ such period shall constitute "Excess Proceeds." ~~When~~ Notwithstanding the ~~aggregate amount of Excess Proceeds exceeds $5.0 million~~foregoing paragraph, if the Company ~~will be required to make an offer to an Holders~~ consummates the Designated Transaction, then the Company (~~an "Asset Sale Offer"), to purchase~~i) shall, on a ~~pro rata basis~~ date which is not less than 15 nor more than 30 days after the ~~principal~~ date on which the Designated Transaction is consummated, offer to purchase from all Holders an amount not less than $35,000,000 (expressed as an integral multiple of ~~Notes equal in amount to~~ $1,000) of the ~~Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"),~~ Securities at a purchase price ~~in cash in an amount~~ equal to ~~100~~104% of the stated principal amount thereof plus accrued and unpaid interest ~~and Liquidated Damages~~ thereon to the date of purchase (subject to the right of ~~each Holder of record~~ Holders on the relevant ~~Record Date~~ record date to receive interest ~~due~~ on the relevant ~~Interest Payment Date~~interest payment date) and purchase any Securities tendered in response to such offer (up to an amount equal to $35,000,000), and (ii) may use the Net Available Cash received from the Designated Transaction less an amount equal to the amount required to repurchase Securities tendered in response to the offer made under the immediately preceding clause (i) in a manner contemplated by clause (b)(iii) of Section 4.04. Any remaining Net Available Cash received from the Designated Transaction and not used pursuant to the immediately preceding clauses (i) and (ii) shall be applied in accordance with the ~~procedures set forth~~ immediately preceding paragraph of this Section 4.06. Notwithstanding the foregoing two paragraphs, if the Company consummates any Asset Disposition other than the Designated Transaction, then the Company (i) shall, on a date which is not less than 15 nor more than 30 days after the date on which such Asset Disposition is consummated, offer to purchase from all Holders an amount not less than the Collateral Maintenance Tender Offer Amount (expressed as an integral multiple of $1,000) of the Securities at a purchase price equal to 105% of the stated principal amount thereof plus accrued and unpaid interest thereon to the date of purchase (subject to the right of Holders on the relevant record date to receive interest on the relevant interest payment date) and purchase any Securities tendered in ~~this Indenture,~~ response to such offer (up to an amount equal to the Collateral Maintenance Tender Offer Amount); and (ii) may use the Net Available Cash received from such Asset Disposition less an amount equal to the amount required to repurchase Securities tendered in response to the offer made under the immediately preceding clause (i) in a manner contemplated by clause (b)(iii) of Section 4.04. Any remaining Net Available Cash received from such Asset Disposition and not used pursuant to the immediately preceding clauses (i) and (ii) shall be applied in accordance with the ~~following standards: (i) If~~ immediately second preceding paragraph of this Section 4.06. If, as of the first day of any calendar month, the aggregate amount of Excess Proceeds not theretofore subject to an Excess Proceeds Offer (as defined below) totals at least $5.0 million, the Company must, not later than the fifteenth Business Day of such month, make an offer (an "Excess Proceeds Offer") to purchase from the Holders on a pro rata basis an aggregate stated principal amount of ~~Notes surrendered by Holders thereof exceeds~~ Securities equal to the Excess Proceeds (rounded down to the nearest multiple of $1,000) on such date, at a purchase price equal to 105% of the stated principal amount of such Securities, plus, in each case, accrued interest (if any) to the date of purchase (the "Excess ~~Proceeds,~~ Proceeds Payment"). The Company shall commence any Excess Proceeds Offer with respect to the Securities by mailing a written notice to the Trustee ~~shall select~~ and each Holder stating: (A) that the ~~Notes~~ Excess Proceeds Offer is being made pursuant to this Section 4.06 and that all Securities validity tendered will be ~~purchased~~ accepted for payment on a pro rata basis; (B) the purchase price and the date of purchase (which shall be a Business Day no earlier than 30 days nor later than 60 days from the date such notice is mailed) (the "Excess Proceeds Payment Date"); (C) that any Security not tendered will continue to accrue interest pursuant to its terms; (D) that, ~~based~~ unless the Company defaults in the payment of the Excess Proceeds Payment, any Security accepted for payment pursuant to the Excess Proceeds Offer shall cease to accrue interest on and after the Excess Proceeds Payment Date; (E) that Holders electing to have a Security purchased pursuant to the Excess Proceeds Offer will be required to surrender the Security, together with the form entitled "Option of Holder to Elect Purchase" on the reverse side of the Security completed, to the Paying Agent at the address specified in the notice prior to the close of business on the Business Day immediately preceding the Excess Proceeds Payment Date; (F) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the third Business Day immediately preceding the Excess Proceeds Payment Date, a telegram, facsimile transmission or letter setting forth the name of such Holder, the stated principal amount of ~~Notes tendered~~Securities delivered for purchase and a statement that such Holder is withdrawing his election to have such Securities purchased; and (G) that Holders whose Securities are being purchased only in part will be issued new Securities equal in stated principal amount to the unpurchased portion of the Securities surrendered; provided, ~~with such adjustments as may~~ however, that each Security purchased and each new Security issued shall be ~~deemed appropriate by the Trustee, so that only Notes~~ in ~~denominations~~ a stated principal amount of $1,000 or integral multiples thereof. On the Excess Proceeds Payment Date, the Company shall (A) accept for payment on a pro rata basis Securities or portions thereof tendered pursuant to the Excess Proceeds Offer, (B) deposit with the Paying Agent money sufficient to pay the purchase price of all Securities or portions thereof so accepted, and (C) deliver, or cause to be delivered, to the Trustee all Securities or portions thereof so accepted together with an Officers' Certificate specifying the Securities or portions thereof so accepted for payment by the Company. The Paying Agent shall promptly mail to the Holders of Securities so accepted payment in an amount equal to the purchase price, and the Trustee shall promptly authenticate and mail to such Holders a new Security equal in stated principal amount to any unpurchased portion of the Security surrendered; provided, however; that each Security purchased and each new Security issued shall be ~~purchased~~in a stated principal amount of $1,000 or integral multiples thereof. The Company will publicly announce the results of the Excess Proceeds Offer as soon as practicable after the Excess Proceeds Payment Date. For purposes of this Section 4.06, the Trustee shall act as the Paying Agent. The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations thereunder in the event that such Excess Proceeds are received by the Company under this Section 4.06 and the Company is required to repurchase Securities as described above. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.06, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.06 by virtue thereof. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset 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 (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (cb) In the event of the transfer of substantially all (but not all) of the property and assets of the Company ~~and its Subsidiaries~~ as an entirety to a Person in a transaction permitted ~~under~~ by Section ~~5.01 below~~5.01, the ~~successor corporation~~ Successor Company (as defined therein) shall be deemed to have sold the properties and assets of the Company ~~and its Subsidiaries~~ not so transferred for purposes of this ~~covenant~~Section 4.06, and shall comply with the provisions of this ~~covenant~~ Section 4.06 with respect to such deemed sale as if it were an Asset ~~Sale. In addition,~~ Disposition and the ~~fair market value of such properties and assets of the~~ Successor Company ~~or its Subsidiaries deemed to be sold~~ shall be deemed to be have received Net Available Cash ~~for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any Subsidiary~~ in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the ~~Asset Sale Offer Amount~~ fair market value (as determined in ~~respect~~ good faith by the Board of ~~all Notes~~ Directors) of the properties and assets not so transferred or ~~portions thereof so accepted;~~ sold. (c) All Net Available Cash shall constitute Trust Moneys and ~~(iii) deliver, or cause to~~ shall be ~~delivered,~~ delivered by the Company to the Trustee and shall be deposited in the ~~Notes~~ Collateral Account in accordance with this Indenture. Net Available Cash so ~~accepted together with an Officers' Certificate listing~~ deposited may be withdrawn from the ~~Notes or portions thereof tendered to~~ Collateral Account for application by the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of in accordance with this Section ~~4.11, the Trustee shall act as the Paying Agent~~4.06 or otherwise pursuant to this Indenture.

Appears in 1 contract

Sources: Indenture (Concorde Gas Marketing Inc)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company ~~shall~~ will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ 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 ~~Sale (which~~ Disposition, as such fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) may be determined (and shall be ~~determined~~ determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $100.0 million) in good faith by the ~~Board~~ Company, whose determination shall be conclusive (including as to the value of ~~Directors for~~ all noncash consideration); (ii) in the case of any ~~transaction~~ Asset Disposition (or series of ~~transactions~~related Asset Dispositions) ~~involving in excess~~ having a fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) of $~~1,000,000) and~~ 100.0 million or more, at least 7575.0% of the consideration (excluding, in the case of each 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) for such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis) received ~~therefor~~ by the Company or such Restricted Subsidiary is in the form of ~~cash or Cash Equivalents and is received at the time of such sale~~ cash; and (iiiii) an amount equal to 100% (as may be adjusted pursuant to clause (3) of the proviso to this clause (iii)) of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the Company (or any Restricted Subsidiary (including any Issuer), as the case may be) as follows: (A) first, either (x) to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Credit Facility Indebtedness, any Senior Indebtedness of the Company or any Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness or Obligations in respect thereof or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness or Obligations in respect thereof (in each case other than Indebtedness owed to the Company or a Restricted Subsidiary) within 450 days after the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash, or (y) to the extent the Company or such Restricted Subsidiary elects, to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Company or another Restricted Subsidiary) within 450 days from the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 450 days to complete, the period of time necessary to complete such project; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above (such balance, the “Excess Proceeds”), to make an offer to purchase Notes and (to the extent the Company or such Restricted Subsidiary elects, or is required by the terms thereof) to purchase, redeem or repay any other Senior Indebtedness of the Company or a Restricted Subsidiary, pursuant and subject to Section 411(b) and Section 411(c) and the agreements governing such other Indebtedness; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) above (the amount of such balance, “Declined Excess Proceeds”), to fund (to the extent consistent with any other applicable provision of this Indenture) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations or the making of other Restricted Payments); provided, however, that (1) in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A)(x) or (B) above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; (2) the Company (or any Restricted Subsidiary, as the case may be) ~~within 270 days from~~ may elect to invest in Additional Assets prior to receiving the ~~date~~ Net Available Cash attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (A)(y) above with respect to such Asset Disposition; and (3) the foregoing percentage in this Section 411(a)(iii) shall be reduced to 50.0% if the Consolidated Total Leverage Ratio would be equal to or less than 4.00:1.00 after giving pro forma effect to any application of such Net Available Cash as set forth herein (any Net Available Cash in respect of Asset ~~Sale either:~~ Dispositions not required to be applied in accordance with this clause (Aiii) as a result of the application of this clause (3) of this proviso shall collectively constitute “Total Leverage Excess Proceeds”). Notwithstanding the foregoing provisions of this Section 411, the Company and the Restricted Subsidiaries shall not be required to ~~prepay, repay, redeem~~ apply any Net Available Cash or ~~purchase any Indebtedness~~ equivalent amount in accordance with this Section 411 except to the extent that ~~by its terms~~ the aggregate Net Available Cash from all Asset Dispositions or equivalent amount that is not ~~subordinate~~ applied in accordance with this Section 411 (excluding all Total Leverage Excess Proceeds) exceeds $100.0 million. If the aggregate principal amount of Notes and/or other Indebtedness of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to ~~the Notes~~ purchase, redemption or ~~any Guarantee and,~~ repayment) in ~~the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and~~ connection with an offer pursuant to clause (B) ~~to:~~ above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding principal amount of such Notes and the denominator of which is the sum of the outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. For the purposes of Section 411(a)(ii), the following are deemed to be cash: (1) ~~make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or~~ Temporary Cash Investments and Cash Equivalents; (2) ~~acquire~~ the ~~Capital~~ assumption of Indebtedness of the Company (other than Disqualified Stock of ~~a Person~~ the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition; (3) Indebtedness of any Restricted Subsidiary that ~~becomes~~ is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the ~~acquisition~~ extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such ~~Capital Stock~~Indebtedness in connection with such Asset Disposition; ~~provided~~ (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such ~~Person is, at~~ Restricted Subsidiary into cash within 180 days; (5) consideration consisting of Indebtedness of the ~~time it becomes a~~ Company or any Restricted Subsidiary~~, engaged in a Related Business~~; or (C6) ~~a combination of prepayment and investment permitted by clauses (A)~~ Additional Assets; and (B7) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause, not to exceed an aggregate amount at any time outstanding equal to the greater of $150.0 million and 2.50% of Consolidated Total Assets (with the Fair Market Value of each item of Designated Noncash Consideration being measured on the date a legally binding commitment for such disposition (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in value). (b) ~~Any~~ In the event of an Asset Disposition that requires the purchase of Notes pursuant to Section 411(a)(iii)(B), the Issuers will be required to purchase Notes tendered pursuant to an offer by the Issuers for the Notes (the “Offer”) at a purchase price of 100.0% of their principal amount plus accrued and unpaid interest to the date of purchase in accordance with the procedures (including prorating in the event of oversubscription provided that the authorized denominations are maintained) set forth in Section 411(c). If the aggregate purchase price of the Notes tendered pursuant to the Offer is less than the Net Available Cash ~~not applied within 270 days after~~ allotted to the ~~consummation~~ purchase of ~~an Asset Sale as provided~~ Notes, the remaining Net Available Cash will be available to the Company and the Restricted Subsidiaries for use in ~~clauses~~ accordance with Section 411(a)(iii)(B) (~~A), (B~~to repay other Indebtedness of the Company or a Restricted Subsidiary) or ~~(C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will~~ Section 411(a)(iii)(C). The Issuers shall not be required to make an ~~offer~~ Offer for Notes pursuant to this Section 411 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 411(a)(iii)(A)) is less than $100.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an ~~Holders (an "~~Offer is required with respect to the Net Available Cash from any subsequent Asset ~~Sale Offer"~~Disposition)~~, to purchase, on a pro rata basis the~~ . No Note will be repurchased in part if less than $2,000 in original principal amount of ~~Notes equal in amount~~ such Note would be left outstanding. (c) The Issuers shall, not later than 45 days after the Issuers become obligated to make an Offer pursuant to this Section 411, mail a notice to each Holder with a copy to the ~~Excess Proceeds~~ Trustee stating: (1) that an Asset Disposition that requires the purchase of a portion of the Notes has occurred and ~~not just~~ that such Holder has the ~~amount thereof that exceeds $5.0 million~~right (subject to the prorating described below) (to require the ~~"Asset Sale Offer Amount"),~~ applicable Issuer to purchase a portion of such Holder’s Notes at a purchase price in cash ~~in an amount~~ equal to ~~100~~100.0% of the principal amount ~~thereof~~ thereof, plus accrued and unpaid ~~interest and Liquidated Damages thereon~~ interest, if any, to the date of purchase (subject to the right of ~~each Holder~~ Holders of record on ~~the relevant Record Date~~ a record date to receive interest ~~due~~ on the relevant Interest Payment ~~Date~~Date falling prior to or on the purchase date); (2) the repurchase date (which shall be no earlier than 10 days nor later than 60 days from the date such notice is mailed, except that such notice may be delivered more than 60 days prior to the purchase date if the purchase is delayed as provided in clause (5) of this Section 411(c)); (3) the instructions determined by the Issuers, consistent with this Section 411, that a Holder must follow in order to have its Notes purchased; (4) the amount of the Offer which amount may be contingent upon the Net Available Cash remaining following the application of Net Available Cash pursuant to Section 411(a)(iii)(A) and (5) if such notice is mailed prior to the date the Net Available Cash attributable to such Asset Disposition is received, that such offer is conditioned upon receipt of such Net Available Cash and that the purchase date may, in ~~accordance with~~ the ~~procedures set forth in this Indenture~~Issuers’ discretion, ~~and in accordance with~~ be delayed until such time as the ~~following standards: (i) If~~ Net Available Cash is received. If, upon the expiration of the period for which the Offer remains open, the aggregate principal amount of Notes surrendered by Holders ~~thereof~~ exceeds the amount of ~~Excess Proceeds~~the Offer, the ~~Trustee~~ Issuers, acting together, shall select the Notes to be purchased on a pro rata ~~basis, based on the principal amount of Notes tendered,~~ basis (with such adjustments as may be deemed appropriate by the ~~Trustee~~Issuers, acting together, so that only Notes in denominations of $~~1,000~~ 2,000 or integral multiples of $1,000 in excess thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) ~~If at~~ The Issuers will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any ~~time any non-cash consideration received by the Company~~ other securities laws or ~~any Subsidiary~~ regulations in connection with ~~any Asset Sale is converted into or sold or otherwise disposed~~ the repurchase of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made Notes pursuant to this Section ~~4.11 and~~ 411. To the extent that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of ~~Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder~~ any securities laws or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes regulations conflict with provisions of this Section ~~4.11~~411, the ~~Trustee shall act as~~ Issuers will comply with the ~~Paying Agent~~applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 411 by virtue thereof.

Appears in 1 contract

Sources: Indenture (Univar Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted ~~Subsidiary~~ Subsidiaries to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale 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 Sale (which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions) involving in excess of $1,000,000) and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents and is received at the time of such sale and (ii) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied by the Company (or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); (2) except in the case of a Permitted Asset Swap, in any such Asset Disposition, or series of related Asset Dispositions, at least 75% of the consideration from such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis) (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise), received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and (3) within ~~270~~ 540 days from the later of (A) the date of such Asset Disposition and (B) the receipt of the Net Available Cash from such Asset Disposition (as may be extended by an Acceptable Commitment as set forth below, the “Proceeds Application Period”), an amount equal to the Net Available Cash is applied: (i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness), (a) to prepay, repay or purchase any Indebtedness of a Non-Guarantor Subsidiary (in each case, other than Indebtedness owed to the Company or any Restricted Subsidiary) or any Secured Indebtedness, including Indebtedness under the First Lien Credit Agreement or the ABL Credit Agreement (or, in each case, any Refinancing Indebtedness in respect thereof); provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (i), the Company or such Restricted Subsidiary will retire such Indebtedness and (other than any such Indebtedness under any asset-backed credit facility or other revolving credit facility (or any Refinancing Indebtedness in respect thereof) will cause the related commitment (if any) to be reduced in an amount equal to the principal amount so prepaid, repaid or purchased; or (ii) to prepay, repay or purchase Pari Passu Indebtedness; provided that, to the extent the Company redeems, repays or repurchases such Indebtedness pursuant to this clause (ii), the Company shall equally and ratably reduce Obligations under the Notes as provided under ‎Section 5.7 through open-market purchases or by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to all Holders to purchase their Notes at 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; and (ii) to the extent the Company or any Restricted Subsidiary elects, to invest in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary equal to the amount of Net Available Cash received by the Company or another Restricted Subsidiary) or make capital expenditures; provided, however, that a binding agreement shall be treated as a permitted application of Net Available Cash from the date of such ~~Asset Sale either:~~commitment with the good faith expectation that an amount equal to Net Available Cash will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”); or (Aiii) any combination of the foregoing; provided that (1) pending the final application of the amount of any such Net Available Cash pursuant to ~~prepay~~this ‎Section 3.5, ~~repay~~the Company or the applicable Restricted Subsidiaries may apply such Net Available Cash temporarily to reduce Indebtedness (including under the First Lien Credit Agreement or the ABL Credit Agreement) or otherwise apply such Net Available Cash in any manner not prohibited by this Indenture, ~~redeem~~ and (2) the Company (or ~~purchase~~ any ~~Indebtedness~~ Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that ~~by its terms is not subordinate~~ such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (ii) above with respect to such Asset Disposition. (b) If, with respect to any Asset Disposition, at the expiration of the Proceeds Application Period with respect to such Asset Disposition, there remains Net Available Cash in excess of $75 million (such amount of Net Available Cash that are equal to $75 million, “Declined Excess Proceeds,” and such amount of Net Available Cash that are in excess of $75 million, “Excess Proceeds”), then subject to the limitations with respect to Foreign Dispositions set forth below and the immediately subsequent paragraph, the Company shall make an offer (an “Asset Disposition Offer”) no later than ten business days after the expiration of the Proceeds Application Period to all Holders of Notes or and, if required by the terms of any ~~Guarantee and~~Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, to purchase the maximum principal amount of such Notes and Pari Passu Indebtedness, as appropriate, on a pro rata basis, that may be purchased out of such Excess Proceeds, if any, at an offer price, in the case of ~~any such Indebtedness under any revolving credit facility~~the Notes, effect a permanent reduction in the availability under such revolving credit facility; and (B) to: (1) make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash not applied within 270 days after the consummation of an Asset Sale as provided in clauses (A), (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis the principal amount of Notes equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in an amount equal to 100% of the principal amount thereof (or in the event such other Indebtedness was issued with original issue discount, 100% of the accreted value thereof), plus accrued and unpaid ~~interest and Liquidated Damages thereon~~ interest, if any (or such lesser price with respect to Pari Passu Indebtedness, if any, as may be provided by the terms of such other Indebtedness), to, but not including, the date fixed for the closing of ~~purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date)~~such offer, in accordance with the procedures set forth in this ~~Indenture~~Indenture and the agreement governing the Pari Passu Indebtedness, as applicable, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. Notices of an Asset Disposition Offer shall be sent by first class mail or sent electronically, at least 10 days but not more than 60 days before the purchase date to each Holder of the Notes at such Holder’s registered address or otherwise in accordance with the ~~following standards:~~applicable procedures of DTC, with a copy to the Trustee. The Company may satisfy the foregoing obligation with respect to the Net Available Cash by making an Asset Disposition Offer prior to the expiration of the Proceeds Application Period (the “Advance Offer”) with respect to all or a part of the Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture. (ic) Notwithstanding the foregoing, the amount of Net Available Cash required to be applied in an Asset Disposition Offer will reduce to an amount equal to 50% of Excess Proceeds if the Consolidated First Lien Secured Leverage Ratio is equal to or less than 2.00 to 1.00 on a pro forma basis and such amount will further reduce to an amount equal to 0% of Excess Proceeds if the Consolidated First Lien Secured Leverage Ratio is equal to or less than 1.75 to 1.00 on a pro forma basis. Any such amounts not required to be applied in such Asset Disposition Offer pursuant to this paragraph shall be deemed to constitute Declined Excess Proceeds. (d) To the extent that the aggregate amount (or accreted value, as applicable) of Notes and, if applicable, any other Pari Passu Indebtedness validly tendered or otherwise surrendered in connection with an Asset Disposition Offer made with Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) is less than the amount offered in an Asset Disposition Offer, the Company may include any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) in Declined Excess Proceeds, and use such Declined Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of the Notes ~~surrendered by Holders thereof~~ or, if applicable, Pari Passu Indebtedness validly tendered pursuant to any Asset Disposition Offer exceeds the amount of Excess ~~Proceeds~~Proceeds (or, in the case of an Advance Offer, the ~~Trustee~~ Advance Portion), the Company shall ~~select~~ allocate the Excess Proceeds among the Notes and Pari Passu Indebtedness to be purchased on a pro rata ~~basis, based~~ basis on the ~~principal amount~~ basis of ~~Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If~~ the aggregate principal amount (or accreted value, as applicable) of tendered Notes tendered pursuant to such Asset 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 (subject to the and Pari Passu Indebtedness; provided that no Notes or other ~~provisions of this Indenture)~~Pari Passu Indebtedness will be selected and purchased in an unauthorized denomination. Upon completion of an any Asset ~~Sale~~ Disposition Offer, the amount of Net Available Cash and Excess Proceeds ~~then~~ shall be reset at zero. (e) Notwithstanding any other provisions of this ‎Section 3.5, (i) to the extent that any of or all the Net Available Cash of any Asset Disposition by a Foreign Subsidiary or a CFC Holding Company (a “Foreign Disposition”) is (x) prohibited or delayed by applicable local law, (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous organizational or administrative impediments from being repatriated to the United States, the portion of such Net Available Cash so affected will not be required to be ~~otherwise~~ applied in ~~accordance~~ compliance with this ‎Section 3.5, and such amounts may be retained by the applicable Foreign Subsidiary or CFC Holding Company so long, but only so long, as the applicable local law or regulation, applicable organizational documents or agreements or other impediments will not permit repatriation to the United States (the Company hereby agreeing to use reasonable efforts (as determined in the Company’s reasonable business judgment) to otherwise cause the applicable Foreign Subsidiary or CFC Holding Company to within one year following the date on which the respective payment would otherwise have been required, promptly take all actions reasonably required by the applicable local law or regulation, applicable organizational documents or other impediments to permit such repatriation), and if within one year following the date on which the respective payment would otherwise have been required such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, applicable organizational impediment or other impediment, such repatriation will be promptly effected and such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation could be made) applied (net of additional Taxes payable or reserved against as a result thereof) (whether or not such repatriation actually occurs) in compliance with this ‎Section 3.5; or (ii) to the extent that the Company has determined in good faith that repatriation of, or an obligation to repatriate, any of or all the Net Available Cash of any Foreign Disposition would have an adverse Tax consequence (which for the avoidance of doubt, includes, but is not limited to, any prepayment whereby doing so the Company, any Restricted Subsidiary, or any of their respective affiliates and/or direct or indirect equity owners would incur a Tax liability, including as a result of receipt of a Tax dividend, a deemed dividend pursuant to Code Section 956 or a withholding Tax, the Net Available Cash so affected may be retained by the applicable Foreign Subsidiary or CFC Holding Company. For the avoidance of doubt, nothing in this covenant shall require the Company to cause any amounts to be ~~reset~~ repatriated to ~~zero~~the United States (whether or not such amounts are used in or excluded from the determination of the amount of any mandatory prepayments hereunder). The non-application of any prepayment amounts as a consequence of the foregoing provisions will not, ~~subject to any subsequent Asset Sale~~for the avoidance of doubt, constitute a Default or an Event of Default. (cf) In For the ~~event~~ purposes of ~~the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below~~‎Section 3.5(a)(2), the ~~successor corporation shall~~ following will be deemed to ~~have sold~~ be cash: (1) the ~~properties and assets~~ assumption by the transferee of ~~the Company and its Subsidiaries not so transferred for purposes of this covenant~~Indebtedness or other liabilities, ~~and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition~~contingent or otherwise, ~~the fair market value of such properties and assets~~ of the Company or ~~its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes~~ a Restricted Subsidiary (other than Subordinated Indebtedness of ~~this covenant.~~the Company or a Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition; (d2) ~~If at any time any non-cash consideration~~ securities, notes or other obligations received by the Company or any Restricted Subsidiary of the Company from the transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash and Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within 180 days following the closing of such Asset Disposition; (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition; (4) consideration consisting of Indebtedness of the Company (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company or any Restricted Subsidiary; and (5) any Designated Non-Cash Consideration received by the Company or any Restricted Subsidiary in such Asset ~~Sale~~ Dispositions having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this ‎Section 3.5 that is ~~converted~~ at that time outstanding, not to exceed the greater of $90.0 million and 35.0% of LTM EBITDA (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value). (g) To the extent that any portion of Applicable Proceeds payable in respect of the Notes is denominated in a currency other that U.S. dollars, the amount thereof payable in respect of the Notes shall not exceed the net amount of funds in U.S. dollars that is actually received by the Company upon converting such portion into U.S. dollars. (h) To the extent that the provisions of any securities laws, rules or ~~sold or otherwise disposed~~ regulations, including Rule 14e-1 under the Exchange Act, conflict with the provisions of ~~for cash~~this Indenture, ~~then such conversion or disposition~~ the Company will comply with the applicable securities laws, rules and regulations and shall not be deemed to ~~constitute an Asset Sale hereunder and~~ have breached its obligations described in this Indenture by virtue thereof. The Company may rely on any no-action letters issued by the ~~Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after~~ SEC indicating that the ~~date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense~~ staff of the ~~Company, shall send to each Holder by first-class mail, postage prepaid,~~ SEC will not recommend enforcement action in the event a ~~notice prepared by the Company stating:~~tender offer satisfies certain conditions. (i) ~~that~~ The provisions of this Indenture relative to the Company’s obligation to make an offer to repurchase the Notes as a result of an Asset ~~Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will~~ Disposition may be ~~accepted for payment, subject to proration if~~ waived or modified with the ~~amount~~ written consent of ~~Excess Proceeds is less than~~ the Holders of a majority in aggregate principal amount of ~~all Notes timely tendered pursuant to~~ the ~~Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered~~ then outstanding Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Indenture (Option Care Health, Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company ~~shall~~ will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ 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 ~~Sale (which~~ Disposition, as such fair market value may be determined (and shall be ~~determined~~ 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 for~~ Directors, whose determination shall be conclusive (including as to the value of all noncash consideration), (ii) in the case of any ~~transaction~~ Asset Disposition (or series of ~~transactions~~related Asset Dispositions) ~~involving in excess of $1,000,000) and~~ at least 75% of the consideration 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 ~~therefor~~ by the Company or such Restricted Subsidiary is in the form of ~~cash~~ (a) cash, or ~~Cash Equivalents~~ (b) Designated Noncash Assets having an aggregate fair market value, taken together with all other Designated Noncash Assets received in consideration for Asset Dispositions pursuant to this clause (b) that are at the time outstanding, not to exceed the greater of (x) 5% of Consolidated Tangible Assets and ~~is received~~ (y) $35.0 million at the time of receipt of such ~~sale~~ Designated Noncash Assets; and (iiiii) an amount equal to 100% of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the Company (or ~~such~~ any Restricted Subsidiary, as the case may be) ~~within 270 days from the date of such Asset Sale either~~as follows: (A) to prepay, repay, redeem or purchase any Indebtedness that by its terms is not subordinate to the Notes or any Guarantee and, in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and (B) to: (1) make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash not applied within 270 days after the consummation of an Asset Sale as provided in clauses (A), (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis the principal amount of Notes equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon to the date of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Indenture (Relocation Management Systems Inc)

Limitation on Sales of Assets and Subsidiary Stock. (a) The ~~Company shall~~ Borrower will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the ~~Company~~ Borrower or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ Disposition at least equal to the fair market value (~~including~~ as to of the ~~value of all non-cash consideration~~date on which a legally binding commitment for such Asset Disposition was entered into) of the shares and assets subject to such Asset ~~Sale (which~~ Disposition as such fair market value may be determined (and shall be ~~determined~~ determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $40,000,000) in good faith by the ~~Board~~ Borrower, whose determination shall be conclusive (including as to the value of ~~Directors for~~ all noncash consideration); (ii) in the case of any ~~transaction~~ Asset Disposition (or series of ~~transactions~~related Asset Dispositions) ~~involving~~ having a fair market value (as determined by the Borrower in ~~excess~~ good faith as of ~~$1,000,000~~the date on which a legally binding commitment for such Asset Disposition was entered into) ~~and~~ of$40,000,000 or more, at least 7575.0% of the consideration 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 ~~therefor~~ by the ~~Company~~ Borrower or such Restricted Subsidiary is in the form of ~~cash or Cash Equivalents and is received at the time of such sale~~ cash; and (iiiii) to the extent required by Subsection 8.4(b), an amount equal to ~~100~~100.0% (as may be adjusted pursuant to the final proviso of Subsection 8.4(b)) of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the ~~Company~~ Borrower (or ~~such~~ any Restricted Subsidiary, as the case may be) as provided therein. (b) In the event that on or after the Closing Date the Borrower or any Restricted Subsidiary shall make an Asset Disposition or a Recovery Event in respect of Collateral shall occur, subject to Subsection 8.4(a), an amount equal to 100.0% (as may be adjusted pursuant to the final proviso of this Subsection 8.4(b)) of the Net Available Cash from such Asset Disposition or Recovery Event shall be applied by the Borrower (or any Restricted Subsidiary, as the case may be) as follows: (i) first, either (x) if the Borrower or such Restricted Subsidiary elects, to the extent such Asset Disposition or Recovery Event is an Asset Disposition or Recovery Event in respect of assets that constitute ABL Priority Collateral, to purchase, redeem, repay or prepay, to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof, Indebtedness under the Senior ABL Facility or (in the case of letters of credit, bankers’ acceptances or other similar instruments issued thereunder) cash collateralize any such Indebtedness within ~~270 days from~~ the time period required by such Indebtedness after the later of the date of such Asset ~~Sale either:~~Disposition or Recovery Event, as the case may be, and the date of receipt of such Net Available Cash or (y) to the extent the Borrower or such Restricted Subsidiary elects (by delivery of an officer’s certificate by a Responsible Officer to the Administrative Agent) to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Borrower or another Restricted Subsidiary) within 365 days after the later of the date of such Asset Disposition or Recovery Event, as the case may be, and the date of receipt of such Net Available Cash (such period the “Reinvestment Period”) or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 365 days to complete and is subject to a binding written commitment entered into during the Reinvestment Period, an additional 180 days after the last day of the Reinvestment Period (it being understood and agreed that if no such investment is made within the Reinvestment Period as extended by this clause (y), the Borrower shall make the prepayments required by Subsection 8.4(b)(ii) on the earlier to occur of (I) the last day of such Reinvestment Period as extended by this clause (y) and (II) the date the Borrower elects not to pursue such investment); (ii) second, (1) if no application of Net Available Cash election is made pursuant to preceding clause (i) with respect to such Asset Disposition or Recovery Event or (2) if such election is made to the extent of the balance of such Net Available Cash or equivalent amount after application in accordance with Subsection 8.4(b)(i), within ten Business Days after the end of the Reinvestment Period specified in clause (i) above (as extended pursuant to clause (y) of such clause (i)) (x) to the extent such Asset Disposition or Recovery Event is an Asset Disposition or Recovery Event of assets that constitute Collateral, to purchase, redeem, repay, prepay, make an offer to prepay or repurchase, or deliver a notice of redemption, in accordance with Subsection 4.4(e)(i) (subject to Subsection 4.4(h)) or the agreements or instruments governing the relevant Indebtedness described in clause (B) below (subject to any provision under such agreement or instrument analogous to Subsection 4.4(h)), as applicable, (A) the Term Loans and (B) to ~~prepay~~the extent the Borrower or any Restricted Subsidiary is required by the terms thereof any Pari Passu Indebtedness on a pro rata basis with the Term Loans and (y) to the extent such Asset Disposition is an Asset Disposition of assets that do not constitute Collateral, to purchase, redeem, repay, ~~redeem~~ prepay, make an offer to prepay or ~~purchase~~ repurchase, or deliver a notice of redemption, in accordance with Subsection 4.4(e)(i) (subject to Subsection 4.4(h)) or the agreements or instruments governing any relevant Indebtedness ~~that by its terms is not subordinate~~ permitted under Subsection 8.1 (subject to any provision under such agreement or instrument analogous to Subsection 4.4(h)), as applicable, (A) the Term Loans and (B) to the ~~Notes~~ extent the Borrower or any ~~Guarantee and~~Restricted Subsidiary is required by the terms thereof, any other Indebtedness (other than Indebtedness subordinated in right of payment to the ~~case of any such Indebtedness under any revolving credit facility, effect~~ First Lien Loan Document Obligations) on a ~~permanent reduction in~~ pro rata basis with the ~~availability under such revolving credit facility~~Term Loans; and (Biii) ~~to:~~third, to the extent of the balance of such Net Available Cash or equivalent amount after application in accordance with Subsections 8.4(b)(i) and (ii) above, to fund (to the extent consistent with any other applicable provision of this Agreement) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of Junior Debt); provided, however, that in connection with any prepayment, repayment, purchase or redemption of Indebtedness pursuant to clause (ii) above, the 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, purchased or redeemed; provided, further, that the Borrower (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that, such investment shall be made no earlier than the earliest of notice of the relevant Asset Disposition to the Administrative Agent, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with Subsection 8.4(b)(i) above with respect to such Asset Disposition; provided, further, that the percentage first set forth above in this Subsection 8.4(b) shall be reduced to 50.0% if the Consolidated First Lien Leverage Ratio at the time of such Asset Disposition (or, at the Borrower’s option, on the date a legally binding commitment for such Asset Disposition was entered into) is less than or equal to 2.00:1.00 (any Net Available Cash in respect of Asset Dispositions not required to be applied in accordance with this Subsection 8.4(b) as a result of the application of this proviso shall collectively constitute “Leverage Excess Proceeds”). (c) Notwithstanding the foregoing provisions of this Subsection 8.4, the Borrower and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Subsection 8.4 except to the extent that (x) the aggregate Net Available Cash from all Asset Dispositions and Recovery Events in respect of Collateral or equivalent amount that is not applied in accordance with this Subsection 8.4 (excluding all Leverage Excess Proceeds) exceeds $20,000,000, in which case the Borrower and its Subsidiaries shall apply all such Net Available Cash from such Asset Dispositions and Recovery Events or equivalent amount in accordance with Subsection 8.4(b) or (y) the terms of any Pari Passu Indebtedness would require Net Available Cash or the equivalent amount from such Asset Dispositions and Recovery Events to be applied to purchase, redeem, repay or prepay such Indebtedness prior to reaching such $20,000,000 threshold. (d) For the purposes of Subsection 8.4(a)(ii), the following are deemed to be cash: (1) ~~make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or~~ Temporary Cash Investments and Cash Equivalents, (2) ~~acquire~~ the ~~Capital~~ assumption of Indebtedness of the Borrower (other than Disqualified Stock of ~~a Person~~ 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 ~~becomes~~ is no longer a Restricted Subsidiary as a result of ~~the acquisition of~~ such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash not applied within 270 days after the consummation of an Asset Sale as provided in clauses (A), (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer to an Holders (an "Asset Sale Offer")Disposition, to ~~purchase, on a pro rata basis~~ the extent that the Borrower and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of ~~Notes~~ such Indebtedness in connection with such Asset Disposition, (4) securities received by the Borrower or any Restricted Subsidiary from the transferee that are converted by the Borrower or such Restricted Subsidiary into cash within 180 days, (5) consideration consisting of Indebtedness of the Borrower or any Restricted Subsidiary, (6) Additional Assets, and (7) any Designated Noncash Consideration received by the Borrower or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate fair market value (as determined by the Borrower in good faith), taken together with all other Designated Noncash Consideration received pursuant to this clause (7), not to exceed an aggregate amount at any time outstanding equal ~~in amount~~ to the ~~Excess Proceeds (~~greater of $50,000,000 and ~~not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in an amount equal to 100~~4.00% of ~~the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon to the date of purchase~~ Consolidated Total Assets (~~subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance~~ with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value ~~of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant.~~ (~~d) If at any time any non-cash consideration received~~ as determined by the ~~Company or any Subsidiary~~ Borrower in ~~connection with any Asset Sale is converted into or sold or otherwise disposed~~ good faith) of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after each item of Designated Noncash Consideration being measured on the date ~~the amount of Excess Proceeds exceeds $5.0 million~~a legally binding commitment for such Asset Disposition (or, ~~the Company~~if later, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of ~~the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant~~ such item) was entered into and without giving effect to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified subsequent changes in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11value). (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: First Lien Credit Agreement (Atkore International Group Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted ~~Subsidiary~~ Subsidiaries to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale 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 Sale (which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions) involving in excess of $1,000,000) and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents and is received at the time of such sale and (ii) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied by the Company (or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); (2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), with a purchase price in excess of the greater of $150.0 million and 15.0% of LTM EBITDA, at least 75% of the consideration from such Asset Disposition, together with all other Asset Dispositions since the Completion Date (on a cumulative basis), (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents (which determination may be made by the Company, at its option, either (x) on the date of contractually agreeing to such Asset Disposition or (y) at the time the Asset Disposition is completed); and (3) within ~~270~~ 365 days from the later of (A) the date of such Asset Sale either: (A) to prepay, repay, redeem or purchase any Indebtedness that by its terms is not subordinate to the Notes or any Guarantee and, in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and Disposition and (B) ~~to: (1) make an investment in properties or assets that replace~~ the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result receipt of the acquisition of such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash ~~not applied within 270 days after~~ from such Asset Disposition (as may be extended by an Acceptable Commitment as set forth below, the ~~consummation of an Asset Sale as provided in clauses (A~~“Proceeds Application Period”), (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis the principal amount of Notes equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in an amount equal to ~~100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon~~ such Net Available Cash is applied, to the ~~date of purchase~~ extent the Company or any Restricted Subsidiary, as the case may be, elects: (~~subject~~ a) to the ~~right~~ extent such Net Available Cash are from an Asset Disposition of Collateral, (w) to reduce, prepay, repay or purchase any First Lien Obligations under the New Exit Revolving Facility (or any Refinancing Indebtedness in respect thereof) or any other First Lien Obligations, in each ~~Holder of record on~~ case with senior payment priority to the ~~relevant Record Date~~ Notes pursuant to ~~receive interest due on~~ the ~~relevant Interest Payment Date~~First Lien Intercreditor Agreement or any other intercreditor agreement or any Refinancing Indebtedness in respect thereof, (x) to reduce, prepay, repay or purchase any First Lien Obligations (other than the Notes and the New Exit Revolving Facility), including Indebtedness under the Credit Agreement (or any Refinancing Indebtedness in respect thereof); provided that the Company ratably offer to repurchase Notes (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer or Asset Disposition Offer), redeem Notes as described under ‎Section 5.7 or purchase Notes through open-market purchases or in ~~this Indenture~~privately negotiated transactions, ~~and~~ (y) to make an offer (in accordance with the ~~following standards:~~ procedures set forth below for a Collateral Asset Disposition Offer or Asset Disposition Offer), redeem Notes as described under ‎Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, or (iz) ~~If the aggregate principal amount~~ to reduce, prepay, repay or purchase any Indebtedness of ~~Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds~~a Non-Guarantor (in each case, ~~the Trustee shall select the Notes~~ other than Indebtedness owed to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any ~~Subsidiary~~ Restricted Subsidiary); provided, however, that, in connection with any ~~Asset Sale is converted into~~ reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of ~~for cash, then~~ in connection with 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~~Disposition constituted “borrowing base assets”) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults reduced in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the principal amount so reduced, prepaid, repaid or purchased; (b) to the extent such Net Available Cash is from an Asset ~~Sale~~ Disposition that does not constitute Collateral, (w) to reduce, prepay, repay or purchase any Indebtedness secured by a Lien on such asset, (x) to reduce, prepay, repay or purchase senior Indebtedness; provided, that the Company ratably offer to repurchase Notes (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer ~~Amount~~ or Asset Disposition Offer), redeem Notes as described under ‎Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, (y) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, or (z) to reduce, prepay, repay or purchase any Indebtedness of a Non-Guarantor (in each case, other than Indebtedness owed to the Company or any Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (b), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of ~~all Notes~~ any asset-based credit facility to the extent the assets sold or ~~portions thereof so accepted; and (iii~~otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) ~~deliver, or cause~~ to be ~~delivered,~~ reduced in an amount equal to the ~~Trustee the Notes~~ principal amount so ~~accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01~~reduced, ~~the Paying Agent shall promptly send by first class mail, postage~~ prepaid, ~~to each Holder~~ repaid or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.purchased;

Appears in 1 contract

Sources: Indenture (Windstream Parent, Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company ~~shall~~ will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ 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 ~~Sale (which~~ Disposition, as such fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) may be determined (and shall be ~~determined~~ determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $50.0 million) in good faith by the ~~Board~~ Company, whose determination shall be conclusive (including as to the value of ~~Directors for~~ all noncash consideration); (ii) in the case of any ~~transaction~~ Asset Disposition (or series of ~~transactions~~related Asset Dispositions) ~~involving in excess~~ having a fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) of $~~1,000,000) and~~ 50.0 million or more, at least 7575.0% of the consideration 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 ~~therefor~~ by the Company or such Restricted Subsidiary is in the form of ~~cash or Cash Equivalents and is received at the time of such sale~~ cash; and (iiiii) an amount equal to ~~100~~100.0% (as may be adjusted pursuant to clause (3) of the last proviso to this Section 411(a)(iii)) of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the Company (or ~~such~~ any Restricted Subsidiary, as the case may be) as follows: (A) first, either (x) to the extent the Company elects (or is required by the terms of any Credit Facility Indebtedness, any Senior Indebtedness of the Company or any Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness (in each case other than Indebtedness owed to the Company or a Restricted Subsidiary) within ~~270~~ 365 days ~~from~~ after the later of the date of such Asset ~~Sale either:~~Disposition and the date of receipt of such Net Available Cash, or (y) to the extent the Company or such Restricted Subsidiary elects, to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Company or another Restricted Subsidiary) within 365 days from the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash, or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 365 days to complete the period of time necessary to complete such project; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above (such balance, the “Excess Proceeds”), to ~~prepay~~make an offer to purchase Notes and (to the extent the Company or such Restricted Subsidiary elects, ~~repay~~or is required by the terms thereof) to purchase, redeem or ~~purchase~~ repay any other Senior Indebtedness ~~that by its terms is not subordinate~~ of the Company or a Restricted Subsidiary, pursuant and subject to Section 411(b) and Section 411(c) and the ~~Notes or any Guarantee and, in the case of any~~ agreements governing such ~~Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility~~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) ~~to:~~ above (the aggregate of any such amounts, “Declined Excess Proceeds”), to fund (to the extent consistent with any other applicable provision of this Indenture) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations and the making of other Restricted Payments); provided, however, that (1) ~~make~~ in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A)(x) or (B) above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an ~~investment in properties~~ amount equal to the principal amount so prepaid, repaid or ~~assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or~~ purchased; (2) ~~acquire~~ the ~~Capital~~ Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (A)(y) above with respect to such Asset Disposition; and (3) the foregoing percentage in this Section 411(a)(iii) shall be reduced to 50% if the Consolidated Total Leverage Ratio would be equal to or less than 3.00:1.00 after giving pro forma effect to any application of such Net Available Cash as set forth herein (any Net Available Cash in respect of Asset Dispositions not required to be applied in accordance with this clause (iii) as a result of the application of this proviso shall collectively constitute “Total Leverage Excess Proceeds”). Notwithstanding the foregoing provisions of this Section 411, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 411 except to the extent that the aggregate Net Available Cash from all Asset Dispositions or equivalent amount that is not applied in accordance with this Section 411 (excluding all Total Leverage Excess Proceeds) exceeds $50.0 million. If the aggregate principal amount of Notes and/or other Indebtedness of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to clause (B) above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding principal amount of such Notes and the denominator of which is the sum of the outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. For the purposes of Section 411(a)(ii), the following are deemed to be cash: (1) Temporary Cash Investments and Cash Equivalents; (2) the assumption of Indebtedness of the Company (other than Disqualified Stock of ~~a Person~~ the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition; (3) Indebtedness of any Restricted Subsidiary that ~~becomes~~ is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the ~~acquisition~~ extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such ~~Capital Stock~~Indebtedness in connection with such Asset Disposition; ~~provided~~ (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such ~~Person is, at~~ Restricted Subsidiary into cash within 180 days; (5) consideration consisting of Indebtedness of the ~~time it becomes a~~ Company or any Restricted Subsidiary~~, engaged in a Related Business~~; or (C6) ~~a combination of prepayment and investment permitted by clauses (A)~~ Additional Assets; and (B7) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause, not to exceed an aggregate amount at any time outstanding equal to the greater of $150.0 million and 33.0% of Four Quarter Consolidated EBITDA (with the Fair Market Value of each item of Designated Noncash Consideration being measured on the date a legally binding commitment for such disposition (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in value). (b) ~~Any Net Available Cash not applied within 270 days after~~ In the ~~consummation~~ event of an Asset ~~Sale as provided in clauses (A~~Disposition that requires the purchase of Notes pursuant to Section 411(a)(iii)(B)~~, (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million~~, the Company will be required to purchase Notes tendered pursuant to an offer by the Company for the Notes (the “Offer”) at a purchase price of 100.0% of their principal amount plus accrued and unpaid interest to the date of purchase in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 411(c). If the aggregate purchase price of the Notes tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of Notes, the remaining Net Available Cash will be available to the Company for use in accordance with Section 411(a)(iii)(B) (to repay other Indebtedness of the Company or a Restricted Subsidiary) or Section 411(a)(iii)(C). The Company shall not be required to make an ~~offer~~ Offer for Notes pursuant to this Section 411 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 411(a)(iii)(A)) is less than $50.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an ~~Holders (an "~~Offer is required with respect to the Net Available Cash from any subsequent Asset ~~Sale Offer"~~Disposition)~~, to purchase, on a pro rata basis the~~ . No Note will be repurchased in part if less than $2,000 in original principal amount of ~~Notes equal in amount~~ such Note would be left outstanding. (c) The Company shall, not later than 45 days after the Company becomes obligated to make an Offer pursuant to this Section 411, send a notice to each Holder with a copy to the ~~Excess Proceeds~~ Trustee stating: (1) that an Asset Disposition that requires the purchase of a portion of the Notes has occurred and ~~not just~~ that such Holder has the ~~amount thereof that exceeds $5.0 million~~right (subject to the prorating described below) (to require the ~~"Asset Sale Offer Amount"),~~ Company to purchase a portion of such Holder’s Notes at a purchase price in cash ~~in an amount~~ equal to ~~100~~100.0% of the principal amount ~~thereof~~ thereof, plus accrued and unpaid ~~interest and Liquidated Damages thereon~~ interest, if any, to the date of purchase (subject to the right of ~~each Holder~~ Holders of record on ~~the relevant Record Date~~ a record date to receive interest ~~due~~ on the relevant Interest Payment ~~Date~~Date falling prior to or on the purchase date); (2) the repurchase date (which shall be no earlier than 10 days nor later than 60 days from the date such notice is sent); (3) the instructions determined by the Company, consistent with this Section 411, that a Holder must follow in ~~accordance with~~ order to have its Notes purchased; and (4) the ~~procedures set forth in this Indenture~~amount of the Offer. If, ~~and in accordance with~~ upon the ~~following standards: (i) If~~ expiration of the period for which the Offer remains open, the aggregate principal amount of Notes surrendered by Holders ~~thereof~~ exceeds the amount of ~~Excess Proceeds~~the Offer, the ~~Trustee~~ Company shall select the Notes to be purchased on a pro rata ~~basis, based on the principal amount of Notes tendered,~~ basis (with such adjustments as may be deemed appropriate by the ~~Trustee,~~ Company so that only Notes in denominations of $~~1,000~~ 2,000 or integral multiples of $1,000 in excess thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) ~~If at~~ The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any ~~time any non-cash consideration received by the Company~~ other securities laws or ~~any Subsidiary~~ regulations in connection with ~~any Asset Sale is converted into or sold or otherwise disposed~~ the repurchase of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made Notes pursuant to this Section ~~4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if~~ 411. To the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) extent that the ~~Trustee will return to the Holder~~ provisions of ~~a Global Note that is being purchased in part, such Global Note~~ any securities laws or regulations conflict with ~~a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion~~ provisions of ~~such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to~~ this Section ~~4.11. (f) On the Asset Sale Payment Date~~411, the Company ~~shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit~~ will comply with the ~~Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal~~ applicable securities laws and regulations and will not be deemed to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of have breached its obligations under this Section ~~4.11, the Trustee shall act as the Paying Agent~~411 by virtue thereof.

Appears in 1 contract

Sources: Indenture (Envision Healthcare Corp)

Limitation on Sales of Assets and Subsidiary Stock. (a) The -------------------------------------------------- Company shall not, and shall not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale unless:~~ Disposition 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 ~~Sale~~ Disposition at least equal to the fair market value (~~including~~ as to determined in good faith by the ~~value~~ Company's Board of ~~all non-cash consideration~~Directors) of the shares and assets subject to such Asset ~~Sale~~ Disposition, (~~which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions~~ii) ~~involving in excess of $1,000,000) and~~ at least 75% of the consideration thereof received ~~therefor~~ by the Company or such Restricted Subsidiary is in the form of cash ~~or Cash Equivalents~~ and ~~is received at the time of such sale and~~ (iiiii) an amount equal to 100% of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, within ~~270~~ 360 days ~~from~~ after the later of the date of such ----- Asset ~~Sale either: (A) to prepay, repay, redeem~~ Disposition or ~~purchase any Indebtedness that by its terms is not subordinate to~~ the Notes or any Guarantee and, in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and (B) to: (1) make an investment in properties or assets that replace the properties or assets that were the subject receipt of such Asset Sale or in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock; provided that such Person isNet Available Cash, to, at the ~~time it becomes a Restricted Subsidiary, engaged in a Related Business; or~~Company's or such Restricted (Ca) ~~a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any~~ except to the extent that the aggregate Net Available Cash from all Asset Dispositions that is not applied within 270 days after the consummation of an Asset Sale as provided in clauses (A), (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis the principal amount of Notes equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon to the date of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this ~~covenant shall~~ Section 4.06(a) exceeds $10,000,000. For the purposes of this Section 4.06, the following are deemed to be ~~reset to zero, subject to any subsequent Asset Sale.~~ cash: (cx) In the ~~event~~ assumption of ~~the transfer of substantially all (but not all) of the property and assets~~ unsubordinated Indebtedness of the Company ~~and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets~~ (other than Disqualified Stock of the ~~Company~~ Company) or any Restricted Subsidiary and ~~its Subsidiaries not so transferred for purposes of this covenant, and shall comply with~~ the ~~provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets~~ release of the Company or ~~its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant.~~ such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (dy) ~~If at any time any non-cash consideration~~ securities received by the Company or any Restricted Subsidiary ~~in connection with any~~ from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 60 days of the issuance thereof. (b) In the event of an Asset ~~Sale is converted into or sold or otherwise disposed~~ Disposition that requires the purchase of ~~for cash~~Securities (and other unsubordinated Indebtedness) pursuant to Section 4.06(a)(iii)(B), ~~then such conversion or disposition~~ the Company shall be ~~deemed~~ required to ~~constitute~~ purchase Securities (and other unsubordinated Indebtedness) tendered pursuant to an ~~Asset Sale hereunder~~ offer by the Company for the Securities (and other unsubordinated Indebtedness) (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 (and other unsubordinated Indebtedness) tendered pursuant to the Offer is less than the Net Available Cash ~~thereof~~ allotted to the purchase of the Securities (and other unsubordinated Indebtedness), the Company shall apply the remaining Net Available Cash in accordance with Section 4.06(a)(iii)(C). The Company shall not be required to make an Offer for Securities (and other unsubordinated Indebtedness) pursuant to this Section 4.06 if the Net Available Cash available therefor (after application of the proceeds as provided in clause (A) of Section 4.06(a)(iii)) is less than $2,500,000 for any particular Asset Disposition (which lesser amount shall be ~~applied~~ carried forward for purposes of determining whether an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). (1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorationing as hereinafter described in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum shall include (i) the most recent annual and quarterly financial statements and management's discussion and analysis of financial condition and results of operation required to be delivered to the Securityholders pursuant to Section 4.02, (ii) a description of material developments in the Company's business subsequent to the date of the latest of such financial statements, and (iii) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the address referred to in clause (3). (2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers' Certificate as to (i) the amount of the Offer (the "Offer Amount"), (ii) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.06(a). On such date, the Company shall also irrevocably deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust) an amount equal to the Offer Amount to be invested in Temporary Cash Investments and to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation 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 (and other unsubordinated Indebtedness) delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities (and other unsubordinated Indebtedness), the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this ~~covenant~~Section 4.06. (e3) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder Holders electing to have ~~any Notes or portions thereof~~ a Security purchased ~~pursuant to the Asset Sale Offer will~~ shall be required to surrender ~~such Notes~~the Security, with ~~the~~ an appropriate form ~~entitled "Option of Holder to Elect Purchase" on the reverse of such Notes~~ duly completed, to the ~~Paying Agent~~ Company at the address specified in the notice at least three Business Days prior to the ~~close of business on the third Business Day preceding the Asset Sale~~ Purchase Date~~; (vi) that any Holder~~ . Holders shall be entitled to withdraw ~~such~~ their election if the ~~Paying Agent receives,~~ Trustee or the Company receives not later than ~~the close of business on the second~~ one Business Day ~~preceding~~ prior to the ~~Asset Sale~~ Purchase Date, a telegram, telex, facsimile transmission or ~~letter,~~ letter setting forth the name of the Holder, the principal amount of ~~Notes~~ the Security which was delivered by the Holder for ~~purchase,~~ purchase and a statement that such Holder is withdrawing ~~such Holder's~~ his election to have such ~~Notes or portions thereof purchased pursuant to~~ Security purchased. If at the ~~Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to~~ expiration of the ~~Asset Sale~~ Offer ~~must specify~~ Period the aggregate principal amount of Securities (and other unsubordinated Indebtedness) included in the Offer surrendered by holders thereof exceeds the Offer Amount, the Company shall select the Securities (and other unsubordinated Indebtedness) to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that ~~is being tendered for purchase~~only Securities (and other unsubordinated Indebtedness) in denominations of $1,000, ~~which principal amount must~~ or integral multiples thereof, shall be ~~$1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes~~ purchased). Holders whose ~~Certificated Notes~~ Securities are ~~being~~ purchased only in part will be issued new ~~Certificated Notes~~ Securities equal in principal amount to the unpurchased portion of the ~~Certificated Note or Notes~~ Securities surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f4) On At the ~~Asset Sale Payment Date~~time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with also deliver an Officers' Certificate ~~listing~~ stating that such Securities are to be accepted by the ~~Notes~~ Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or ~~portions thereof tendered~~ through an agent, mails or delivers payment therefor to the surrendering Holder. (d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and ~~accepted for payment~~any other securities laws or regulations in connection with the repurchase of Securities pursuant to this Section. ~~Subject to~~ To the extent that the provisions of ~~Section 4.01~~any securities laws or regulations conflict with provisions of this Section, the ~~Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The~~ Company shall ~~publicly announce~~ comply with the ~~results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of~~ applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section ~~4.11, the Trustee shall act as the Paying Agent~~by virtue thereof.

Appears in 1 contract

Sources: Indenture (Ace LTD)

Limitation on Sales of Assets and Subsidiary Stock. (a) The ~~Company shall~~ Issuers and Holdings will not, and ~~shall~~ will not permit any of their Restricted ~~Subsidiary~~ Subsidiaries to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i1) Holdings, the ~~Company~~ Issuers or such Restricted ~~Subsidiary~~ Subsidiary, as the case may be, receives consideration ~~at the time~~ (including by way of ~~such Asset Sale~~ relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (~~including~~ such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as to determined in good faith by the ~~value~~ Board of ~~all non-cash consideration)~~ Directors of Holdings, of the shares and assets subject to such Asset ~~Sale~~ Disposition (~~which fair market value shall be determined~~ including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); (2) in ~~good faith by the Board of Directors for~~ any ~~transaction (~~such Asset Disposition, or series of ~~transactions) involving in excess of $1,000,000) and~~ 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 (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received ~~therefor~~ by Holdings, the ~~Company~~ Issuers or such Restricted ~~Subsidiary~~ Subsidiary, as the case may be, is in the form of cash or Cash ~~Equivalents and is received at the time of such sale~~ Equivalents; and (ii3) an amount equal to 100% of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by Holdings, the ~~Company (~~Issuers or such Restricted Subsidiary, as the case may be~~) within 270 days from the date of such Asset Sale either~~: (i) to the extent Holdings, the Issuers or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness), (A) to prepay, ~~repay, redeem~~ repay or purchase any Indebtedness of a Non-Guarantor or that is secured by ~~its terms is not subordinate~~ a Lien (in each case, other than Indebtedness owed to the ~~Notes~~ Issuers or any ~~Guarantee and~~Restricted Subsidiary) or Indebtedness under the Credit Agreement (or any Refinancing Indebtedness with respect thereof) within 450 days from the later of (a) the date of such Asset Disposition and (b) the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (i), Holdings, the ~~case of any~~ Issuers or such Restricted Subsidiary will retire such Indebtedness ~~under any revolving credit facility~~and will cause the related commitment (if any) to be reduced in an amount equal to the principal amount so prepaid, ~~effect a permanent reduction in the availability under such revolving credit facility~~repaid or purchased; ~~and~~ or (B) ~~to: (1) make an investment in properties~~ to prepay, repay or ~~assets that replace~~ purchase Pari Passu Indebtedness at a price of no more than 100% of the ~~properties or assets that were the subject~~ principal amount of such ~~Asset Sale~~ Pari Passu Indebtedness plus accrued and unpaid interest to the date of such prepayment, repayment or ~~in properties~~ purchase; provided that, to the extent the Issuers redeem, repay or ~~assets that will be used in a Related Business or~~ repurchase Pari Passu Indebtedness pursuant to this clause (~~2) acquire~~ B), the ~~Capital Stock of a Person that becomes a Restricted Subsidiary~~ Issuers shall equally and ratably reduce Obligations under the Notes as ~~a result~~ provided under Section 5.7, through open-market purchases (to the extent such purchases are at or above 100% of the ~~acquisition~~ principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to all Holders to purchase their Notes at 100% of ~~such Capital Stock; provided~~ the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that ~~such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business~~would otherwise be prepaid; or (Cii) to the extent the Issuers or such Restricted Subsidiary elects, to invest in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a ~~combination~~ Restricted Subsidiary with Net Available Cash received by the Issuers or another Restricted Subsidiary) within 450 days from the later of ~~prepayment and investment permitted by clauses~~ (A) the date of such Asset Disposition and (B)) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Issuers that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 450th day; provided that, pending the final application of any such Net Available Cash in accordance with clause (i) or clause (ii) above, Holdings, the Issuers and their Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise use such Net Available Cash in any manner not prohibited by this Indenture. (b) Any Net Available Cash from Asset Dispositions that is not applied ~~within 270 days after the consummation of an Asset Sale~~ or invested or committed to be applied or invested as provided in ~~clauses (A), (B) or (C) of~~ the preceding paragraph ~~(a) above~~ will be deemed to constitute "“Excess Proceeds~~." When~~ ” under this Indenture. On the 451st day after an Asset Disposition, if the aggregate amount of Excess Proceeds under this Indenture exceeds $~~5.0~~ 50.0 million, the ~~Company~~ Issuers will within 10 Business Days be required to make an offer (“Asset Disposition Offer”) to an all Holders ~~(an "Asset Sale Offer")~~of Notes issued under such indenture and, to ~~purchase~~the extent the Issuers elect, ~~on a pro rata basis~~ to all holders of other outstanding Pari Passu Indebtedness, to purchase the maximum principal amount of Notes ~~equal in amount~~ and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess ~~Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount")~~Proceeds, at ~~a purchase~~ an offer price in ~~cash~~ respect of the Notes in an amount equal to 100% of the principal amount ~~thereof~~ of the Notes and Pari Passu Indebtedness, in each case, plus accrued and unpaid interest and ~~Liquidated Damages thereon to~~ Additional Interest, if any, to, but not including, the date of ~~purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date)~~purchase, in accordance with the procedures set forth in this ~~Indenture~~Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and, with respect to the Notes, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. The Issuers will deliver notice of such Asset Disposition Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with the ~~following standards:~~procedures of DTC, describing the transaction or transactions that constitute the Asset Disposition and offering to repurchase the Notes for the specified purchase price on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by this Indenture and described in such notice. (ic) If To the extent that the aggregate ~~principal~~ amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, and Pari Passu Indebtedness so ~~that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes~~ validly tendered and not properly withdrawn pursuant to ~~such~~ an Asset ~~Sale~~ Disposition Offer is less than the Excess Proceeds, the ~~Company~~ Issuers may use any remaining Excess Proceeds ~~following the completion of the Asset Sale Offer~~ for general corporate ~~purposes (~~purposes, subject to ~~the~~ other ~~provisions of~~ covenants contained in this Indenture). If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Excess Proceeds shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness, subject to adjustments by the Issuers to maintain the authorized denominations for the Notes and Pari Passu Indebtedness. Upon completion of an any Asset ~~Sale~~ Disposition Offer, the amount of Excess Proceeds ~~then required to be otherwise applied in accordance with this covenant~~ shall be reset to at zero~~, subject to any subsequent Asset Sale~~. (cd) In To the ~~event~~ extent that any portion of Net Available Cash payable in respect of the ~~transfer of substantially all (but not all)~~ Notes is denominated in a currency other than U.S. dollars, the amount thereof payable in respect of the ~~property and assets~~ Notes shall not exceed the net amount of funds in U.S. dollars that is actually received by the ~~Company and its Subsidiaries as an entirety to a Person in a transaction permitted under~~ Issuers upon converting such portion into U.S. dollars. (e) For the purposes of Section ~~5.01 below~~3.5(a)(2) hereof, the ~~successor corporation shall~~ following will be deemed to ~~have sold~~ be cash: (1) the ~~properties and assets~~ assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the ~~Company~~ Issuers or a Restricted Subsidiary (other than Subordinated Indebtedness of the Issuers or a Guarantor) and ~~its Subsidiaries~~ the release of the Issuers or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition; (2) securities, notes or other obligations received by Holdings, the Issuers or any Restricted Subsidiary of the Issuers from the transferee that are converted by Holdings, the Issuers or such Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Disposition; (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that Holdings, the Issuers and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition; (4) consideration consisting of Indebtedness of the Issuers (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not ~~so transferred for purposes~~ Holdings, the Issuers or any Restricted Subsidiary; and (5) any Designated Non-Cash Consideration received by Holdings, the Issuers or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this covenant that is at that time outstanding, not to exceed the greater of $45.0 million and 1.75% of Total Assets (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value). (f) The Issuers will comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations (and rules of any exchange on which the Notes are then listed) thereunder to the extent such laws or regulations (or exchange rules) are applicable in connection with the repurchase of Notes pursuant to this ~~covenant, and shall comply~~ Section 3.5. To the extent that the provisions of any securities laws or regulations (or exchange rules) conflict with the provisions of this ~~covenant with respect to such deemed sale as if it were an Asset Sale. In addition~~Indenture, the ~~fair market value of such properties~~ Issuers will comply with the applicable securities laws and ~~assets of the Company~~ regulations (or ~~its Subsidiaries deemed to be sold~~ exchange rules) and shall not be deemed to ~~be Net Available Cash for purposes of~~ have breached their obligations described in this ~~covenant~~Indenture by virtue thereof. (d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Indenture (Trisyn Group, Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The ~~Company shall~~ Parent Borrower will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the ~~Company~~ Parent Borrower or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ 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 ~~Sale (which~~ Disposition, as such fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) may be determined (and shall be ~~determined~~ determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $40,000,000) in good faith by the ~~Board~~ Borrower Representative, whose determination shall be conclusive (including as to the value of ~~Directors for~~ all noncash consideration); (ii) in the case of any ~~transaction~~ Asset Disposition (or series of ~~transactions~~related Asset Dispositions) ~~involving in excess~~ having a fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) of $~~1,000,000) and~~ 40,000,000 or more, at least 7575.0% of the consideration 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 ~~therefor~~ by the ~~Company~~ Parent Borrower or such Restricted Subsidiary is in the form of ~~cash or Cash Equivalents and is received at the time of such sale~~ cash; and (iiiii) to the extent required by Subsection 8.4(b), an amount equal to ~~100~~100.0% of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the ~~Company~~ Parent Borrower (or ~~such~~ any Restricted Subsidiary, as the case may be) as provided therein. (b) In the event that on or after the Closing Date the Parent Borrower or any Restricted Subsidiary shall make an Asset Disposition or a Recovery Event in respect of Collateral shall occur, subject to Subsection 8.4(a), an amount equal to 100.0% of the Net Available Cash from such Asset Disposition or Recovery Event shall be applied by the Parent Borrower (or any Restricted Subsidiary, as the case may be) as follows: (i) first, either (x) if the Parent Borrower or such Restricted Subsidiary elects, to the extent such Asset Disposition or Recovery Event is an Asset Disposition or Recovery Event of assets that constitute ABL Priority Collateral, to purchase, redeem, repay or prepay, to the extent the Parent Borrower or any Restricted Subsidiary is required by the terms thereof, Indebtedness under the Senior ABL Facility or (in the case of letters of credit, bankers’ acceptances or other similar instruments issued thereunder) cash collateralize any such Indebtedness within ~~270 days from~~ the time period required by such Indebtedness after the later of the date of such Asset ~~Sale either:~~Disposition or Recovery Event, as the case may be, and the date of receipt of such Net Available Cash or (y) to the extent the Parent Borrower or such Restricted Subsidiary elects (by delivery of an officer’s certificate by a Responsible Officer to the Administrative Agent) to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Parent Borrower or another Restricted Subsidiary) within (x) 365 days after the later of the date of such Asset Disposition or Recovery Event, as the case may be, and the date of receipt of such Net Available Cash (such period the “Reinvestment Period”) or, (y) if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 365 days to complete and is subject to a binding written commitment entered into during the Reinvestment Period, an additional 180 days after the last day of the Reinvestment Period (it being understood and agreed that if no such investment is made within the Reinvestment Period as extended by this clause (y), the Borrowers shall make the prepayments required by Subsection 8.4(b)(ii) on the earlier to occur of (I) the last day of such Reinvestment Period as extended by this clause (y) and (II) the date the Borrower Representative elects not to pursue such investment); (ii) second, (1) if no application of Net Available Cash election is made pursuant to preceding clause (i) with respect to such Asset Disposition or Recovery Event or (2) if such election is made to the extent of the balance of such Net Available Cash or equivalent amount after application in accordance with Subsection 8.4(b)(i), within ten Business Days after the end of the Reinvestment Period specified in clause (i) above (as extended pursuant to clause (y) of such clause (i)) (x) to the extent such Asset Disposition or Recovery Event is an Asset Disposition or Recovery Event of assets that constitute Collateral, to purchase, redeem, repay, prepay, make an offer to prepay or repurchase, or deliver a notice of redemption, in accordance with Subsection 4.4(e)(i) (subject to Subsection 4.4(h)) or the agreements or instruments governing the relevant Indebtedness described in clause (B) below subject to any provision under such agreement or instrument analogous to Subsection 4.4(h)), as applicable, (A) the Term Loans and (B) to ~~prepay~~the extent the Parent Borrower or any Restricted Subsidiary is required by the terms thereof any Pari Passu Indebtedness on a pro rata basis with the Term Loans and (y) to the extent such Asset Disposition is an Asset Disposition of assets that do not constitute Collateral, to purchase, redeem, repay, ~~redeem~~ prepay, make an offer to prepay or ~~purchase~~ repurchase, or deliver a notice of redemption, in accordance with Subsection 4.4(e)(i) (subject to Subsection 4.4(h)) or the agreements or instruments governing any relevant Indebtedness ~~that by its terms is not subordinate~~ permitted under Subsection 8.1 (subject to any provision under such agreement or instrument analogous to Subsection 4.4(h)), as applicable, (A) the Term Loans and (B) to the ~~Notes~~ extent the Parent Borrower or any ~~Guarantee and~~Restricted Subsidiary is required by the terms thereof, any other Indebtedness (other than Indebtedness subordinated in right of payment to the ~~case of any such Indebtedness under any revolving credit facility, effect~~ Term Loan Facility Obligations) on a ~~permanent reduction in~~ pro rata basis with the ~~availability under such revolving credit facility~~Term Loans; and (Biii) ~~to:~~ third, to the extent of the balance of such Net Available Cash or equivalent amount after application in accordance with Subsections 8.4(b)(i) and (ii) above, to fund (to the extent consistent with any other applicable provision of this Agreement) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of Junior Debt); provided, however, that (1) ~~make~~ in connection with any prepayment, repayment, purchase or redemption of Indebtedness pursuant to clause (ii) above, the Parent 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, purchased or redeemed; (2) the Parent Borrower (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that, such investment shall be made no earlier than the earliest of notice of the relevant Asset Disposition to the Administrative Agent, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in ~~properties or assets that replace~~ accordance with Subsection 8.4(b)(i) above with respect to such Asset Disposition; and (3) the ~~properties or assets that were~~ percentage first set forth above in this Subsection 8.4(b) shall be reduced to (x) 50.0% if the ~~subject~~ Consolidated First Lien Leverage Ratio at the time of such Asset ~~Sale~~ Disposition (or, at the Parent Borrower’s option, on the date a legally binding commitment for such Asset Disposition is entered into) or Recovery Event would be less than or equal to 2.75:1.00 and (y) 0.0% if the Consolidated First Lien Leverage Ratio at the time of such Asset Disposition (or, at the Parent Borrower’s option, on the date a legally binding commitment for such Asset Disposition is entered into) or Recovery Event would be less than or equal to 2.00:1.00, in ~~properties~~ each case, after giving pro forma effect thereto and to any application of Net Available Cash as set forth herein. (c) Notwithstanding the foregoing provisions of this Subsection 8.4, the Parent Borrower and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or ~~assets~~ equivalent amount in accordance with this Subsection 8.4 except to the extent that ~~will~~ (x) the aggregate Net Available Cash from all Asset Dispositions and Recovery Events in respect of Collateral or equivalent amount that is not applied in accordance with this Subsection 8.4 exceeds $32,000,000, in which case the Parent Borrower and its Subsidiaries shall apply all such Net Available Cash from such Asset Dispositions and Recovery Events or equivalent amount in accordance with Subsection 8.4(b) or (y) the terms of any Pari Passu Indebtedness would require Net Available Cash or the equivalent amount from such Asset Sales and Recovery Events to be ~~used in a Related Business or~~applied to purchase, redeem, repay or prepay such Indebtedness prior to reaching such $32,000,000 threshold. (d) For the purposes of Subsection 8.4(a)(ii), the following are deemed to be cash: (1) Temporary Cash Investments and Cash Equivalents, (2) ~~acquire~~ the ~~Capital~~ assumption of Indebtedness of the Parent Borrower (other than Disqualified Stock of ~~a Person~~ the Parent Borrower) or any Restricted Subsidiary and the release of the Parent 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 ~~becomes~~ is no longer a Restricted Subsidiary as a result of ~~the acquisition of~~ such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash not applied within 270 days after the consummation of an Asset Sale as provided in clauses (A), (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer to an Holders (an "Asset Sale Offer")Disposition, to ~~purchase, on a pro rata basis~~ the extent that the Parent Borrower and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of ~~Notes equal~~ such Indebtedness in ~~amount~~ connection with such Asset Disposition, (4) securities received by the Parent Borrower or any Restricted Subsidiary from the transferee that are converted by the Parent Borrower or such Restricted Subsidiary into cash within 180 days, (5) consideration consisting of Indebtedness of the Parent Borrower or any Restricted Subsidiary, (6) Additional Assets, and (7) any Designated Noncash Consideration received by the Parent Borrower or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to ~~the Excess Proceeds~~ this clause (~~and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"~~7), ~~at a purchase price in cash in~~ not to exceed an aggregate amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon to the date of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time ~~any non-cash consideration received by~~ outstanding equal to the ~~Company or any Subsidiary~~ greater of $93,500,000 and 5.50% of Consolidated Total Assets (with the Fair Market Value of each item of Designated Noncash Consideration being measured on the date a legally binding commitment for such Asset Disposition (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes 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 covenantvalue). (e) ~~Within 30 calendar days after~~ In connection with any Asset Disposition permitted under this Subsection 8.4 or a Disposition that is excluded from the ~~date the amount~~ definition of ~~Excess Proceeds exceeds $5.0 million~~“Asset Disposition”, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered NotesAdministrative Agent shall, and the ~~date Notes are to be purchased pursuant to~~ Lenders hereby authorize the ~~Asset Sale Offer (~~Administrative Agent to, execute such releases of L▇▇▇▇ and take such other actions as the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults Borrower Representative may reasonably request in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, connection with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11foregoing. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Credit Agreement (SiteOne Landscape Supply, Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) ~~The Company~~ Holdings shall not, and shall not permit the Company or any Restricted Subsidiary to, directly or indirectly, consummate any Asset ~~Sale unless:~~ Disposition unless (i1) Holdings, the Company or such Restricted Subsidiary receives consideration at the time of such Asset ~~Sale~~ Disposition at least equal to the ~~fair market value~~ Fair Market Value (including as to the value of all non-cash consideration) of the shares and assets subject to such Asset ~~Sale~~ Disposition; (~~which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions~~2) ~~involving in excess of $1,000,000) and~~ at least 75% of the consideration thereof received ~~therefor~~ by Holdings, the Company or such Restricted Subsidiary is in the form of cash or Temporary Cash ~~Equivalents~~ Investments; and ~~is received at the time of such sale and~~ (ii3) an amount equal to 100% of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by Holdings (or the Company (or such Restricted Subsidiary, as the case may be) ~~within 270 days from the date of such Asset Sale either:~~ (A) first, to ~~prepay~~the extent Holdings elects, ~~repay~~within 365 days of the receipt of such Net Available Cash, ~~redeem~~ (i) to reduce the outstanding principal amount of Permitted Indebtedness Incurred pursuant to Section 4.03(b)(1); (ii) to reduce the outstanding principal amount of any other Senior Indebtedness of Holdings, the Company or any Subsidiary Guarantor; provided, however, that the Company shall equally and ratably reduce the principal amount of Securities outstanding, through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or through redemption, or shall offer (in accordance with the procedures set forth below in Section 4.06(b)) to all Holders to purchase ~~any~~ their Securities at 100% of the principal amount thereof, plus accrued but unpaid interest, if any, in an aggregate principal amount which, if the offer were accepted, would result in such reduction; or (iii) to reduce Indebtedness of a Restricted Subsidiary that ~~by its terms~~ is not ~~subordinate~~ a Guarantor; in each case other than Indebtedness owed to ~~the Notes~~ Holdings or ~~any Guarantee and, in the case~~ an Affiliate of ~~any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility~~Holdings; ~~and~~ (B) ~~to: (1) make an investment in properties or assets that replace~~ second, to the ~~properties or assets that were~~ extent of the ~~subject~~ balance of such ~~Asset Sale~~ Net Available Cash after application in accordance with clause (A), to the extent Holdings elects, to acquire Additional Assets or make any other capital expenditures in ~~properties or assets that will be used in~~ respect of a Related Business ~~or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result~~ within 365 days of the ~~acquisition~~ receipt of such ~~Capital Stock~~Net Available Cash; ~~provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or~~ and (C) ~~a combination~~ third, to the extent of ~~prepayment and investment permitted by~~ the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders of the Securities (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, Holdings, the Company or such Restricted Subsidiary shall cause the related loan commitment (if any) to be reduced in an amount equal to the principal amount so prepaid, repaid or purchased. The requirement of Section 4.06(a)(3)(B) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by Holdings, the Company or any of its Restricted Subsidiaries within the time period specified in Section 4.06(a)(3)(A) and such Net Available Cash is subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Notwithstanding the foregoing provisions of this Section 4.06, Holdings, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 4.06 except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06 exceeds $20,000,000. Pending application of Net Available Cash pursuant to this Section 4.06, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit Indebtedness. For the purposes of Section 4.06(a)(2), the following are deemed to be cash or Temporary Cash Investments: (i) the assumption or discharge of Indebtedness of Holdings (other than obligations in respect of Disqualified Stock of Holdings), the Company or any Restricted Subsidiary (other than obligations in respect of Disqualified Stock or Preferred Stock of the Company or a Restricted Subsidiary that is a Subsidiary Guarantor) and the release of Holdings, the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition; (ii) any securities received by Holdings, the Company or any Restricted Subsidiary from the transferee that are converted by Holdings, the Company or such Restricted Subsidiary into cash within ninety (90) days after such Asset Disposition, to the extent of the cash received in that conversion; and (iii) any Designated Non-cash Consideration received by Holdings, the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (3) that is at that time outstanding, not to exceed the greater of (1) $65,000,000 and (2) 4% of Consolidated Net Tangible Assets of Holdings, the Company and the Restricted Subsidiaries at the time of the receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value). (b) ~~Any Net Available Cash not applied within 270 days after~~ In the ~~consummation~~ event of an Asset ~~Sale as provided in clauses~~ Disposition that requires the purchase of Securities (~~A),~~ and other Senior Indebtedness) pursuant to Section 4.06(a)(3)(C) (B) or ~~(C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million~~following which, the Company ~~will be required~~ elects to ~~make~~ purchase the Securities pursuant Section 4.06(a)(3)(A)(ii) above), the Company shall purchase Securities tendered pursuant to an offer ~~to an Holders~~ (an "“Asset Sale Offer~~"), to purchase, on a pro rata basis~~ ”) by the ~~principal amount of Notes equal in amount to~~ Company for the ~~Excess Proceeds~~ Securities (and ~~not just the amount thereof that exceeds $5.0 million~~such other Senior Indebtedness) ~~(the "Asset Sale Offer Amount"),~~ at a purchase price ~~in cash in an amount equal to~~ of 100% of ~~the~~ their principal amount ~~thereof~~ without premium, plus accrued ~~and~~ but unpaid interest ~~and Liquidated Damages thereon to the date of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date),~~ in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture~~, and in accordance with the following standards: (i)~~ . If the aggregate ~~principal amount~~ purchase price of ~~Notes surrendered by Holders thereof~~ the securities tendered exceeds the ~~amount of Excess Proceeds~~Net Available Cash allotted to their purchase, the ~~Trustee~~ Company shall select the ~~Notes~~ securities to be purchased on a pro rata ~~basis~~basis but in round denominations, ~~based on~~ which in the ~~principal amount~~ case of ~~Notes tendered, with such adjustments as may~~ the Securities shall be ~~deemed appropriate by the Trustee, so that only Notes in~~ minimum denominations of $2,000 principal amount or any greater integral multiple of $1,000 ~~or integral multiples thereof~~ thereof. The Company shall not be required to make such an Asset Sale Offer pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $50,000,000 (which lesser amount shall be ~~purchased. (ii) If the aggregate principal amount~~ carried forward for purposes of ~~Notes tendered pursuant to~~ determining whether such an Asset 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 (subject~~ required with respect to the ~~other provisions of this Indenture~~Net Available Cash from any subsequent Asset Disposition). Upon completion of such an Asset Sale Offer, Net Available Cash shall be reset at zero. (1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Asset Sale Offer, the ~~amount of Excess Proceeds then required~~ Company shall deliver to ~~be otherwise applied~~ 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 ~~accordance with this covenant shall be reset to zero,~~ whole or in part (subject to prorating as described in Section 4.06(b) in the event the Asset Sale Offer is oversubscribed) in denominations of $2,000 of principal amount or any ~~subsequent Asset Sale~~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 shall enable such Holders to make an informed decision. (c2) In Not later than the ~~event~~ date upon which written notice of an Asset Sale Offer is delivered to the ~~transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries~~ Trustee as ~~an entirety to a Person in a transaction permitted under Section 5.01~~ provided below, the ~~successor corporation~~ Company shall ~~be deemed~~ deliver to ~~have sold~~ the ~~properties and assets~~ Trustee an Officer’s Certificate as to (A) the amount of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale ~~is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an~~ Offer (the “Asset Sale ~~hereunder and~~ Offer Amount”), including information as to any other Senior Indebtedness included in the Asset Sale Offer, (B) the allocation of the Net Available Cash ~~thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after~~ from the ~~date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send~~ Asset Dispositions pursuant to ~~each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an~~ which such Asset Sale Offer is being made ~~pursuant to this~~ and (C) the compliance of such allocation with the provisions of Section ~~4.11~~ 4.06(a) and ~~that all Notes that are timely tendered will be accepted for payment~~(b). On such date, ~~subject to proration~~ the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the ~~amount of Excess Proceeds~~ Company is ~~less than~~ acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the ~~aggregate principal amount of all Notes timely tendered pursuant~~ last day prior to the ~~Asset Sale Offer; (ii)~~ Purchase Date or on the ~~Asset Sale Offer Amount~~Purchase Date if funds are immediately available by open of business, ~~the~~ an amount ~~of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant~~ equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. If the Asset Sale 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 Asset Sale Offer remains open (the "“Asset Sale ~~Purchase Date"~~Offer Period”), ~~which date~~ the Company shall ~~be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent~~ deliver to the ~~date such notice is mailed; (iii) that any Notes~~ Trustee for cancellation the Securities or portions thereof ~~not~~ which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or ~~accepted for~~ deliver payment ~~will continue~~ (or cause the delivery of payment) to ~~accrue interest; (iv) that, unless~~ 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 ~~defaults in~~ to the ~~payment~~ Trustee is less than the Asset Sale Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer ~~Amount~~ Period for application in accordance with ~~respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date;~~this Section 4.06. (v3) ~~that any Holder~~ Holders electing to have ~~any Notes or portions thereof~~ a Security purchased ~~pursuant to the Asset Sale Offer will~~ shall be required to surrender ~~such Notes~~the Security, with ~~the~~ an appropriate form ~~entitled "Option of Holder to Elect Purchase" on the reverse of such Notes~~ duly completed, to the ~~Paying Agent~~ Company at the address specified in the notice at least three Business Days prior to the ~~close of business on the third Business Day preceding the Asset Sale~~ Purchase Date~~; (vi) that any Holder~~ . Holders shall be entitled to withdraw ~~such~~ their election if the ~~Paying Agent receives,~~ Trustee or the Company receives not later than ~~the close of business on the second~~ one Business Day ~~preceding~~ prior to the ~~Asset Sale~~ Purchase Date, a telex, facsimile transmission or ~~letter,~~ letter setting forth the name of the Holder, the principal amount of ~~Notes~~ the Security which was delivered for ~~purchase,~~ purchase by the Holder and a statement that such Holder is withdrawing ~~such Holder's~~ his election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes Security purchased. Holders whose ~~Certificated Notes~~ Securities are ~~being~~ purchased only in part ~~will~~ shall be issued new ~~Certificated Notes~~ Securities equal in principal amount to the unpurchased portion of the ~~Certificated Note or Notes~~ Securities surrendered~~, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof,~~. (ix4) ~~that~~ At the time the Company delivers Securities to the Trustee ~~will return~~ which are to be accepted for purchase, the Company shall also deliver an Officer’s Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the ~~Holder of a Global Note that is being purchased in part~~surrendering Holder. (d) The Company shall comply, ~~such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal~~ to the ~~unpurchased portion~~ extent applicable, with the requirements of ~~such Global Note; and (x)~~ Rule 14e-1 of the Exchange Act and any other ~~information necessary to enable any Holder to tender Notes and to have such Notes purchased~~ securities laws or regulations in connection with the repurchase of Securities pursuant to this Section ~~4.11. (f) On~~ 4.06. To the ~~Asset Sale Payment Date~~extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.06, the Company shall ~~(i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit~~ comply with the ~~Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal~~ applicable securities laws and regulations and shall not be deemed to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of have breached its obligations under this Section ~~4.11, the Trustee shall act as the Paying Agent~~4.06 by virtue of its compliance with such securities laws or regulations.

Appears in 1 contract

Sources: Indenture (Murphy USA Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company ~~shall~~ will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ Disposition at least equal to the 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); (ii) in the case of ~~the shares and assets subject to such~~ any Asset ~~Sale (which fair market value shall be determined in good faith by the Board of Directors for any transaction~~ Disposition (or series of ~~transactions~~related Asset Dispositions) ~~involving in excess~~ having a fair market value of $~~1,000,000) and~~ 10,000,000 or more, at least seventy-five percent (75% %) of the consideration 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 ~~therefor~~ by the Company or such Restricted Subsidiary is in the form of ~~cash~~ cash, and provided that this clause (ii) shall not apply -------- to any Asset Disposition (or ~~Cash Equivalents and is received at~~ series of related Asset Dispositions), involving assets that accounted for less than two percent (2%) of Consolidated EBITDA during the ~~time~~ period of the most recent four (4) consecutive fiscal quarters ending prior to the date of such ~~sale~~ Asset Disposition for which consolidated financial statements of the Company are available; and (iiiii) an amount equal to one-hundred percent (100% %) of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the Company (or ~~such~~ 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 of the Notes), to prepay, repay or purchase the Notes, the Bank Indebtedness under the Credit Agreement or such Indebtedness of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or a Restricted Subsidiary) within ~~270~~ 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 ~~Sale either:~~Disposition, or, if such reinvestment in Additional Assets is a project that is authorized by the Board of Directors that will take longer than such 365 days to complete, the period of time necessary to complete such project; (B) second, to the extent of the balance of such Net Available ------ Cash after application in accordance with clause (A) above, to ~~prepay, repay, redeem or~~ make an offer to purchase ~~any Indebtedness that by its terms is not subordinate~~ Notes pursuant and subject to the ~~Notes or any Guarantee and, in the case~~ conditions of ~~any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility~~this Section 8.4; and (BC) ~~to: (1) make an investment in properties or assets that replace~~ third, to the ~~properties or assets that were~~ extent of the ~~subject~~ balance of such ~~Asset Sale or~~ Net Available ----- Cash after application in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by 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 in connection with any prepayment, repayment or purchase -------- of Indebtedness pursuant to clause (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. (b) ~~Any~~ Notwithstanding the foregoing provisions of this Section 8.4, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 8.4 except to the extent that the aggregate Net Available Cash from all Asset Dispositions that is not applied ~~within 270 days after~~ 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 ~~consummation~~ purposes of clause (ii) of the first paragraph of this Section 8.4, the 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 such 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 ~~Sale as provided in clauses~~ Disposition that requires the purchase of Notes pursuant to clause (~~A), (B) or (C~~iii)(B) of the first paragraph ~~(a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount~~ of ~~Excess Proceeds exceeds $5.0 million~~this Section 8.4, the Company will be required to ~~make~~ purchase Notes tendered pursuant to an offer ~~to an Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis~~ by the ~~principal amount of~~ Company for the Notes ~~equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million)~~ (the "~~Asset Sale Offer Amount~~Offer"), ) at a purchase price ~~in cash in an amount equal to~~ of 100% of ~~the principal amount thereof~~ their ----- Principal Amounts plus accrued and unpaid interest ~~and Liquidated Damages thereon~~ to the date of such purchase ~~(subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date),~~ in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. paragraph (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section ~~4.11, the Trustee shall act as the Paying Agent~~8.

Appears in 1 contract

Sources: Investment Agreement (Acterna Corp)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset ~~Sale~~ Disposition of any Collateral unless: (i1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset ~~Sale~~ 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 ~~Sale~~ Disposition; (~~which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions~~2) ~~involving in excess of $1,000,000) and~~ at least 75% of the consideration thereof received ~~therefor~~ by the Company or such Restricted Subsidiary is in the form of cash or ~~Cash Equivalents and is received at the time of such sale~~ cash equivalents; and (ii3) an amount equal to 100% of the Net Available Cash from such Asset ~~Sale~~ 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 (A) to acquire Additional Assets, which Additional Assets are concurrently with their acquisition added to the 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 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~~) within 270 days from the date of such Asset Sale either:~~) (A) 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 ~~that by its terms is not subordinate~~ owed to the ~~Notes~~ Company or ~~any Guarantee and, in~~ an Affiliate of the ~~case~~ Company) within one year from the later of ~~any~~ the date of such ~~Indebtedness under any revolving credit facility, effect a permanent reduction in~~ Asset Disposition or the ~~availability under~~ receipt of such ~~revolving credit facility; and~~Net Available Cash; (B) ~~to: (1) make an investment in properties or assets that replace~~ to the ~~properties or assets that were~~ extent the ~~subject~~ Company elects, to acquire Additional Assets within one year from the later of the date of such Asset ~~Sale~~ Disposition or ~~in properties or assets that will be used in a Related Business or (2) acquire~~ the ~~Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition~~ receipt of such ~~Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business~~Net Available Cash; or (C) ~~a combination~~ to the extent of ~~prepayment and investment permitted by~~ the balance of such Net Available Cash after application in accordance with (or upon election not to utilize) clauses (A) ~~and~~ or (B) of this section 4.06(b)(3). , to make an offer to the holders of the Securities (band to holders of other Senior Indebtedness of the Company designated by the Company) ~~Any Net Available Cash not applied within 270 days after~~ to purchase Securities (and such other Senior Indebtedness of the ~~consummation~~ Company) pursuant to and subject to the conditions contained in this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of ~~an Asset Sale as provided in clauses~~ Indebtedness pursuant to clause (A~~), (B~~) or (C) of ~~paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million~~this Section 4.06(b), the Company ~~will~~ or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis the principal amount of Notes equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. (c) Notwithstanding the foregoing provisions of paragraphs (a) and (b) of this Section 4.06, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with those paragraphs except to the extent that the aggregate Net Available Cash from all Asset Dispositions subject to those paragraphs which is not applied in accordance with those paragraphs exceeds $5.0 million. Pending application of Net Available Cash pursuant to this Section 4.06, 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 Restricted Subsidiary (other than obligations in respect of Disqualified Stock or Preferred Stock of a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition; and (2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash, to the extent of 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 ~~principal amount thereof~~ accreted value thereof) without premium, plus accrued ~~and~~ but unpaid interest ~~and Liquidated Damages thereon to~~ (or, in respect of such other Senior Indebtedness of the ~~date~~ Company, such lesser price, if any, as may be provided for by the terms of ~~purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date),~~ such Senior Indebtedness) in accordance with the procedures (including prorating in the event of oversubscription) set forth in ~~this Indenture, and in accordance with the following standards: (i)~~ Section 4.06(f). If the aggregate ~~principal amount~~ purchase price of ~~Notes surrendered by Holders thereof~~ the securities tendered exceeds the ~~amount of Excess Proceeds~~Net Available Cash allotted to their purchase, the ~~Trustee~~ Company shall select the ~~Notes~~ securities to be purchased on a pro rata ~~basis~~basis but in round denominations, ~~based on~~ which in the ~~principal amount~~ case of ~~Notes tendered, with such adjustments as may~~ the Securities will be ~~deemed appropriate by the Trustee, so that only Notes in~~ denominations of $1,000 ~~or integral multiples thereof shall be purchased. (ii) If the aggregate~~ principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture)or multiples thereof. Upon completion of an ~~Asset Sale Offer, the amount of Excess Proceeds then required~~ offer to ~~be otherwise applied in accordance with this covenant shall be reset to zero, subject to~~ purchase Securities and any ~~subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets~~ other Senior Indebtedness of the Company ~~and its Subsidiaries as an entirety~~ pursuant to ~~a Person in a transaction permitted under~~ this Section ~~5.01 below~~4.06, ~~the successor corporation~~ 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 Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have ~~sold~~ his Securities purchased by the ~~properties~~ 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 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 ~~assets~~ 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 ~~its Subsidiaries not so transferred for purposes~~ any Current Report on Form 8-K of ~~this covenant~~the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3). (2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall ~~comply~~ deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(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 ~~covenant~~ Section. If the Offer includes other Senior Indebtedness, the deposit described in the preceding sentence may be made with ~~respect~~ any other paying agent pursuant to ~~such deemed sale as if it were an Asset Sale~~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 ~~addition,~~ the ~~fair market value of such properties and assets~~ event that the aggregate purchase price of the ~~Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received~~ Securities delivered by the Company ~~or any Subsidiary in connection with any Asset Sale~~ to the Trustee is ~~converted into or sold or otherwise disposed~~ 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 ~~cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied~~ application in accordance with this ~~covenant~~Section 4.06. (e3) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder Holders electing to have ~~any Notes or portions thereof~~ a Security purchased ~~pursuant to the Asset Sale Offer will~~ shall be required to surrender ~~such Notes~~the Security, with ~~the~~ an appropriate form ~~entitled "Option of Holder to Elect Purchase" on the reverse of such Notes~~ duly completed, to the ~~Paying Agent~~ Company at the address specified in the notice at least three Business Days prior to the ~~close of business on the third Business Day preceding the Asset Sale~~ Purchase Date~~; (vi) that any Holder~~ . Holders shall be entitled to withdraw ~~such~~ their election if the ~~Paying Agent receives,~~ Trustee or the Company receives not later than ~~the close of business on the second~~ one Business Day ~~preceding~~ prior to the ~~Asset Sale~~ Purchase Date, a telex, facsimile transmission or ~~letter,~~ letter setting forth the name of the Holder, the principal amount of ~~Notes~~ the Security which was delivered for ~~purchase,~~ purchase by the Holder and a statement that such Holder is withdrawing ~~such Holder's~~ his election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes Security purchased. Holders whose ~~Certificated Notes~~ Securities are ~~being~~ purchased only in part ~~will~~ shall be issued new ~~Certificated Notes~~ Securities equal in principal amount to the unpurchased portion of the ~~Certificated Note or Notes~~ Securities surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f4) On At the ~~Asset Sale Payment Date~~time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with also deliver an Officers' Certificate ~~listing~~ stating that such Securities are to be accepted by the ~~Notes~~ Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or ~~portions thereof tendered~~ through an agent, mails or delivers payment therefor to the surrendering Holder. (g) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and ~~accepted for payment~~any other securities laws or regulations in connection with the repurchase of Securities pursuant to this Section. ~~Subject to~~ To the extent that the provisions of ~~Section 4.01~~any securities laws or regulations conflict with provisions of this Section, the ~~Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The~~ Company shall ~~publicly announce~~ comply with the ~~results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of~~ applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section ~~4.11, the Trustee shall act as the Paying Agent~~by virtue of its compliance with such securities laws or regulations.

Appears in 1 contract

Sources: Indenture (International Wire Group Inc)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted ~~Subsidiary~~ Subsidiaries to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale 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 Sale (which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions) involving in excess of $1,000,000) and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents and is received at the time of such sale and (ii) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied by the Company (or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); (2) in any such Asset Disposition (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis), (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and (3) within ~~270~~ 455 days from the later of (A) the date of such Asset ~~Sale either~~Disposition and (B) the receipt of the Net Available Cash from such Asset Disposition (as may be extended by an Acceptable Commitment or a Second Commitment as set forth below, the “Proceeds Application Period”), an amount equal to 100% of such Net Available Cash is applied, to the extent the Company or any Restricted Subsidiary, as the case may be, elects: (Aa) to the extent such Net Available Cash are from an Asset Disposition of Collateral, (x) to reduce, prepay, ~~repay~~repay or purchase any First Lien Obligations (other than the Notes), including Indebtedness under the Credit Agreement (or any Refinancing Indebtedness in respect thereof); provided that the Company ratably repay the Notes, (y) to make an offer (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer or Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, or (z) to reduce, prepay, repay or purchase any Indebtedness ~~that by its terms is not subordinate~~ of a Non-Guarantor (in each case, other than Indebtedness owed to the ~~Notes~~ Company or any ~~Guarantee and~~Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (i), the ~~case~~ Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to be reduced in an amount equal to the principal amount so reduced, prepaid, repaid or purchased; (b) to the extent such Net Available Cash is from an Asset Disposition that does not constitute Collateral, (w) to reduce, prepay, repay or purchase any Indebtedness secured by a Lien on such asset, (x) to reduce, prepay, repay or purchase Pari Passu Indebtedness; provided, that the Company ratably repay the Notes, (y) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, or (z) to reduce, prepay, repay or purchase any Indebtedness of a Non-Guarantor (in each case, other than Indebtedness owed to the Company or any Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (i), the Company or such Restricted Subsidiary will retire such Indebtedness ~~under~~ and will cause the related commitment (other than obligations in respect of any ~~revolving~~ asset-based credit ~~facility~~facility to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to be reduced in an amount equal to the principal amount so reduced, ~~effect a permanent reduction in the availability under such revolving credit facility; and~~prepaid, repaid or purchased; (Ba) ~~to:~~ to invest (1including capital expenditures) ~~make~~ in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary); or (b) to invest (including capital expenditures) in any one or more businesses (provided that any such business will be a Restricted Subsidiary), properties or assets that replace the businesses, properties or and/or assets that ~~were~~ are the subject of such Asset ~~Sale~~ Disposition, with any such investment made by way of a capital or ~~in properties or assets~~ other lease valued at the present value of the minimum amount of payments under such lease (as reasonably determined by the Company); provided, however, that a binding agreement shall be treated as a permitted application of Net Available Cash from the date of such commitment with the good faith expectation that an amount equal to Net Available Cash will be ~~used~~ applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in ~~a Related Business or (2) acquire~~ the ~~Capital Stock~~ event of ~~a Person that becomes a~~ any Acceptable Commitment is later cancelled or terminated for any reason before such amount is applied in connection therewith, the Company or such Restricted Subsidiary as enters into another Acceptable Commitment (a ~~result of the acquisition~~ “Second Commitment”) within 180 days of such ~~Capital Stock~~cancellation or termination; ~~provided~~ provided, further, that if any Second Commitment is later cancelled or terminated for any reason before such ~~Person is~~amount is applied, at then such Net Available Cash shall constitute Collateral Excess Proceeds or Excess Proceeds, as the ~~time it becomes a Restricted Subsidiary, engaged in a Related Business~~case may be; or (Ciii) a any combination of ~~prepayment and investment permitted by clauses~~ the foregoing; provided that (A1) ~~and (B). (b) Any~~ pending the final application of the amount of any such Net Available Cash pursuant to this Section 3.5, the Company or the applicable Restricted Subsidiaries may apply such Net Available Cash temporarily to reduce Indebtedness (including under the Senior Credit Facilities) or otherwise apply such Net Available Cash in any manner not prohibited by this Indenture and (2) the Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied ~~within 270~~ pursuant to and in accordance with clause (ii) above with respect to such Asset Disposition. If, with respect to any Asset Disposition of Collateral, at the expiration of the Proceeds Application Period with respect to such Asset Disposition, there remains Net Available Cash in excess of the greater of $75.0 million and 10.0% of LTM EBITDA (such amount, “Collateral Excess Proceeds”), then subject to the limitations with respect to Foreign Dispositions set forth below, the Company shall make an offer (a “Collateral Asset Disposition Offer”) no later than ten business days after the ~~consummation~~ expiration of ~~an Asset Sale as provided in clauses~~ the Proceeds Application Period to all Holders of Notes and, if required by the terms of any First Lien Obligations or Obligations secured by a Lien permitted under this Indenture on the Collateral disposed of (~~A), (B) or (C)~~ which Lien is not subordinate to the Lien of ~~paragraph (a) above will be deemed~~ the Notes with respect to ~~constitute "Excess Proceeds." When~~ the ~~aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer to an Holders (an "Asset Sale Offer"~~Collateral), to ~~purchase~~all holders of such First Lien Obligations or other Obligations, to purchase the maximum principal amount of such Notes and First Lien Obligations or other Obligations, as appropriate, on a pro rata ~~basis the principal amount~~ basis, that may be purchased out of ~~Notes equal in amount to the~~ such Collateral Excess ~~Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount")~~Proceeds, if any, at ~~a purchase price~~ an offer price, in the case of the Notes, in cash in an amount equal to 100% of the principal amount thereof (or in the event such other Indebtedness was issued with original issue discount, 100% of the accreted value thereof), plus accrued and unpaid ~~interest and Liquidated Damages thereon~~ interest, if any (or such lesser price with respect to First Lien Obligations or other Obligations, if any, as may be provided by the terms of such other Indebtedness), to, but not including, the date fixed for the closing of ~~purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date)~~such offer, in accordance with the procedures set forth in this ~~Indenture~~Indenture and the agreement governing the First Lien Obligations or other Obligations, as applicable, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. Notices of a Collateral Asset Disposition Offer shall be sent by first class mail or sent electronically, at least 10 days but not more than 60 days before the purchase date to each Holder of the Notes at such Holder’s registered address or otherwise in accordance with the ~~following standards:~~ applicable procedures of DTC. The Company may satisfy the foregoing obligation with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer prior to the expiration of the Proceeds Application Period (ithe “Collateral Advance Offer”) with respect to all or a part of the Net Available Cash (the “Collateral Advance Portion”) in advance of being required to do so by this Indenture. To the extent that the aggregate amount (or accreted value, as applicable) of Notes and, if applicable, any other First Lien Obligations or Obligations secured by a Lien permitted under this Indenture on the Collateral disposed of, as the case may be, validly tendered or otherwise surrendered in connection with a Collateral Asset Disposition Offer is less than the amount offered in a Collateral Asset Disposition Offer (or, in the case of a Collateral Advance Offer, the Collateral Advance Portion), the Company may use any remaining Collateral Excess Proceeds (or, in the case of an Collateral Advance Offer, the Collateral Advance Portion) (the “Declined Collateral Excess Proceeds”) for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of the Notes ~~surrendered by Holders thereof~~ or, if applicable, First Lien Obligations or other Obligations, as the case may be, validly tendered pursuant to any Collateral Asset Disposition Offer exceeds the amount of Collateral Excess ~~Proceeds~~Proceeds (or, in the case of a Collateral Advance Offer, the ~~Trustee~~ Collateral Advance Portion), the Company shall ~~select~~ allocate the ~~Notes~~ Collateral Excess Proceeds among the Notes, First Lien Obligations and other Obligations to be purchased on a pro rata ~~basis, based~~ basis on the ~~principal amount~~ basis of ~~Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If~~ the aggregate principal amount (or accreted value, as applicable) of ~~Notes~~ tendered ~~pursuant~~ Notes, First Lien Obligations and other Obligations; provided that no Notes, First Lien Obligations or other Obligations will be selected and purchased in an unauthorized denomination. Upon completion of any Collateral Asset Disposition Offer, the amount of Collateral Excess Proceeds shall be reset at zero. If, with respect to any Asset Disposition that does not constitute Collateral, at the expiration of the Proceeds Application Period with respect to such Asset ~~Sale~~ Disposition, there remains Net Available Cash in excess of the greater of $75.0 million and 10.0% of LTM EBITDA (such amount, “Excess Proceeds”), then subject to the limitations with respect to Foreign Dispositions set forth below, the Company shall make an offer (an “Asset Disposition Offer”) no later than ten business days after the expiration of the Proceeds Application Period to all Holders of Notes and, if required by the terms of any Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, to purchase the maximum principal amount of such Notes and Pari Passu Indebtedness, as appropriate, on a pro rata basis, that may be purchased out of such Excess Proceeds, if any, at an offer price, in the case of the Notes, in cash in an amount equal to 100% of the principal amount thereof (or in the event such other Indebtedness was issued with original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest, if any (or such lesser price with respect to Pari Passu Indebtedness, if any, as may be provided by the terms of such other Indebtedness), to, but not including, the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture and the agreement governing the Pari Passu Indebtedness, as applicable, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. Notices of an Asset Disposition shall be sent by first class mail or sent electronically, at least 10 days but not more than 60 days before the purchase date to each Holder of the Notes at such Holder’s registered address or otherwise in accordance with the applicable procedures of DTC. The Company may satisfy the foregoing obligation with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer prior to the expiration of the Proceeds Application Period (the “Advance Offer”) with respect to all or a part of the Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture. (b) To the extent that the aggregate amount (or accreted value, as applicable) of Notes and, if applicable, any other Pari Passu Indebtedness validly tendered or otherwise surrendered in connection with an Asset Disposition Offer is less than the ~~Excess Proceeds~~amount offered in an Asset Disposition Offer (or, in the case of an Advance Offer, the Advance Portion), the Company may use any remaining Excess Proceeds ~~following~~ (or, in the ~~completion~~ case of an Advance Offer, the Advance Portion) (the “Declined Excess Proceeds”) for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of the Notes or, if applicable, Pari Passu Indebtedness validly tendered pursuant to any Asset ~~Sale~~ Disposition Offer ~~for general corporate purposes~~ exceeds the amount of Excess Proceeds (~~subject~~ or, in the case of an Advance Offer, the Advance Portion), the Company shall allocate the Excess Proceeds among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount (or accreted value, as applicable) of tendered Notes and Pari Passu Indebtedness; provided that no Notes or other ~~provisions of this Indenture)~~Pari Passu Indebtedness will be selected and purchased in an unauthorized denomination. Upon completion of an any Asset ~~Sale~~ Disposition Offer, the amount of Excess Proceeds ~~then required to be otherwise applied in accordance with this covenant~~ shall be reset to at zero. To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than Dollars, ~~subject to any subsequent Asset Sale~~the amount thereof payable in respect of the Notes shall not exceed the net amount of funds in Dollars that is actually received by the Company upon converting such portion into Dollars. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the Notwithstanding any other provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant.Section 3.5, (di) ~~If at~~ to the extent that any ~~time any non-cash consideration received by the Company~~ of 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 all the Net Available Cash ~~thereof shall~~ of any Asset Disposition are received or deemed to be received by a Foreign Subsidiary (a “Foreign Disposition”) is (x) prohibited or delayed by applicable local law, (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous organizational or administrative impediments from being repatriated to the United States, the portion of such Net Available Cash so affected will not be required to be applied in ~~accordance~~ compliance with this ~~covenant.~~ Section 3.5, and such amounts may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law documents or agreements will not permit repatriation to the United States (ethe Company hereby agreeing to use reasonable efforts (as determined in the Company’s reasonable business judgment) ~~Within 30 calendar days after~~ to otherwise cause the applicable Foreign Subsidiary to within one year following the date on which the respective payment would otherwise have been required, promptly take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation), and if within one year following the date on which the respective payment would otherwise have been required such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, applicable organizational impediment or other impediment, such repatriation will be promptly effected and the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.repatriate

Appears in 1 contract

Sources: Indenture (Dun & Bradstreet Holdings, Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) ~~The Company shall~~ Holdings will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) ~~the Company~~ Holdings or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ 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 ~~Sale (which~~ Disposition as such fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) may be determined (and shall be ~~determined~~ determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $100.0 million) in good faith by Holdings, whose determination shall be conclusive (including as to the ~~Board~~ value of ~~Directors for~~ all noncash consideration); (ii) in the case of any ~~transaction~~ Asset Disposition (or series of ~~transactions~~related Asset Dispositions) ~~involving in excess~~ having a fair market value of $~~1,000,000) and~~ 100.0 million or more, at least 7575.0% of the consideration (excluding, in the case of each 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) for such Asset Disposition, together with all other Asset Dispositions since the Closing Date (on a cumulative basis) received ~~therefor~~ by ~~the Company~~ Holdings or such Restricted Subsidiary is in the form of ~~cash or Cash Equivalents and is received at the time of such sale~~ cash; and (iiiii) to the extent required by Subsection 8.4(b), an amount equal to 100% (as may be adjusted pursuant to clause (3) of the proviso to Subsection 8.4(b)) of the Net Available Cash from such Asset Disposition is applied by Holdings (or any Restricted Subsidiary (including theeach Borrower), as the case may be) as provided therein. (b) In the event that on or after the Closing Date Holdings or any Restricted Subsidiary shall make an Asset Disposition or a Recovery Event in respect of Collateral shall occur, subject to Subsection 8.4(a), an amount equal to 100.0% of the Net Available Cash from such Asset ~~Sale is~~ Disposition or Recovery Event shall be applied by ~~the Company~~ Holdings (or ~~such~~ any Restricted Subsidiary, as the case may be) as follows: (i) first, to the extent Holdings or such Restricted Subsidiary elects (by delivery of an officer’s certificate by a Responsible Officer to the Administrative Agent) to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by Holdings or another Restricted Subsidiary) within ~~270~~ 450 days ~~from~~ after the later of the date of such Asset ~~Sale either:~~Disposition or Recovery Event, as the case may be, and the date of receipt of such Net Available Cash (such period, the “Reinvestment Period”) or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 450 days to complete, the period of time necessary to complete such project; (Aii) ~~to prepay~~second, repay, redeem or purchase any Indebtedness that by its terms is not subordinate to the Notes or any Guarantee and, in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and (B) to: (1) ~~make an investment in properties or assets that replace the properties or assets that were the subject~~ if no application of Net Available Cash election is made pursuant to preceding clause (i) with respect to such Asset ~~Sale~~ Disposition or ~~in properties~~ Recovery Event or ~~assets that will be used in a Related Business or~~ (2) ~~acquire~~ if such election is made to the ~~Capital Stock of a Person that becomes a Restricted Subsidiary as a result~~ extent of the ~~acquisition~~ balance of such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash ~~not applied within 270 days~~ or equivalent amount after ~~the consummation of an Asset Sale as provided~~ application in ~~clauses (A~~accordance with Subsection 8.4(b)(i), (Bx) to the extent such Asset Disposition or ~~(C)~~ Recovery Event is an Asset Disposition or Recovery Event of ~~paragraph (a) above will be deemed to~~ assets that constitute ~~"Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer to an Holders (an "Asset Sale Offer")~~Collateral, to purchase, redeem, repay or prepay, in accordance with Subsection 4.4(e)(i) (subject to Subsection 4.4(h)) or the agreements or instruments governing the relevant Indebtedness described in clause (B) below, as applicable, (A) the Term Loans and (B) to the extent Holdings or any Restricted Subsidiary is required by the terms thereof any Pari Passu Indebtedness on a pro rata basis with the ~~principal~~ Term Loans and (y) to the extent such Asset Disposition is an Asset Disposition of assets that do not constitute Collateral, to purchase, redeem, repay or prepay, in accordance with Subsection 4.4(e)(i) (subject to Subsection 4.4(h)) or the agreements or instruments governing any relevant Indebtedness permitted under Subsection 8.1, as applicable, (A) the Term Loans and (B) to the extent Holdings or any Restricted Subsidiary is required by the terms thereof, any other Indebtedness (other than Indebtedness subordinated in right of payment to the Term Loan Facilities Obligations) on a pro rata basis with the Term Loans; and (iii) third, to the extent of the balance of such Net Available Cash or equivalent amount after application in accordance with Subsections 8.4(b)(i) and (ii) above (the amount of ~~Notes equal in amount~~ such balance, “Declined Excess Proceeds”), to fund (to the ~~Excess Proceeds~~ extent consistent with any other applicable provision of this Agreement) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of Junior Debt); provided, however, that (1) in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (ii) above, Holdings or such Restricted Subsidiary will retire such Indebtedness and ~~not just~~ will cause the ~~amount thereof that exceeds $5.0 million~~related loan commitment (if any) ~~(the "Asset Sale Offer Amount"), at a purchase price in cash~~ to be permanently reduced in an amount equal to ~~100% of~~ the principal amount ~~thereof plus accrued and unpaid interest and Liquidated Damages thereon~~ so prepaid, repaid or purchased; (2) Holdings (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that, such investment shall be made no earlier than the earliest of notice of the relevant Asset Disposition to the ~~date~~ Administrative Agent, execution of ~~purchase (subject to the right of each Holder of record on~~ a definitive agreement for the relevant ~~Record Date to receive interest due on~~ Asset Disposition, and consummation of the relevant ~~Interest Payment Date), in accordance with~~ Asset Disposition) and deem the ~~procedures set forth in this Indenture,~~ amount so invested to be applied pursuant to and in accordance with ~~the following standards: (i~~Subsection 8.4(b)(i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant above with respect to such ~~deemed sale as~~ Asset Disposition; and (3) the foregoing percentage in this clause (iii) shall be reduced to 50.0% if ~~it were an Asset Sale. In addition,~~ the ~~fair market value~~ Consolidated Total Leverage Ratio would be equal to or less than 4.00:1.00 after giving pro forma effect to any application of such ~~properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be~~ Net Available Cash ~~for purposes of this covenant.~~ as set forth herein (~~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~~ in respect of Asset Dispositions not required to be applied in accordance with this ~~covenant~~clause (iii) as a result of the application of this clause (3) of this proviso shall collectively constitute “Total Leverage Excess Proceeds.”) (ec) ~~Within 30 calendar days after~~ Notwithstanding the ~~date~~ foregoing provisions of this Subsection 8.4, Holdings and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Subsection 8.4 except to the extent that (x) the aggregate Net Available Cash from all Asset Dispositions and Recovery Events in respect of Collateral or equivalent amount that is not applied in accordance with this Subsection 8.4 (excluding all Total Leverage Excess ~~Proceeds~~ Proceeds) exceeds $~~5.0~~ 100.0 million, in which case Holdings and its Subsidiaries shall apply all such Net Available Cash from such Asset Dispositions and Recovery Events or equivalent amount in accordance with Subsection 8.4(b) or (y) the ~~Company,~~ terms of any Pari Passu Indebtedness would require Net Available Cash or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the equivalent amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available from such Recovery Events to be applied to ~~purchase tendered Notes~~purchase, redeem, repay or prepay such Indebtedness prior to reaching such $100.0 million threshold. (d) For the purposes of Subsection 8.4(a)(ii), the following are deemed to be cash: (1) Temporary Cash Investments and Cash Equivalents, (2) the assumption of Indebtedness of Holdings (other than Disqualified Stock of Holdings) or any Restricted Subsidiary and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date release of Holdings or such ~~notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the~~ Restricted Subsidiary from all liability on payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of ~~Notes delivered for purchase, and a statement that~~ such ~~Holder is withdrawing~~ Indebtedness in connection with such ~~Holder's election to have such Notes or portions thereof purchased pursuant to the~~ Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereofDisposition, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Credit Agreement (Univar Solutions Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, ~~directly or indirectly,~~ consummate any Asset ~~Sale unless: (i)~~ Disposition unless the Company or such Restricted Subsidiary receives consideration at the time of such Asset ~~Sale~~ 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 ~~Sale (which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions) involving in excess of $1,000,000)~~ Disposition and at least 7580% of the consideration thereof received ~~therefor~~ by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents. In the event and to the extent that the aggregate Net Available Cash ~~Equivalents~~ received by the Company or any Restricted Subsidiary from one or more Asset Dispositions occurring on or after the Issue Date and not applied pursuant to clause (i) or (ii) below exceeds $5 million, then the Company or such Restricted Subsidiary shall (i) within 360 days after - the date such Net Available Cash so received exceeds $5 million and to the extent the Company or such Restricted Subsidiary elects (or is ~~received at~~ required by the ~~time~~ terms of any Senior Indebtedness), (A) apply an amount equal - to such excess Net Available Cash to prepay, repay or purchase Senior Indebtedness of the Company or such Restricted Subsidiary, in each case owing to a Person other than the Company or any Affiliate of the Company, or (B) invest - (or enter into a binding commitment to invest; provided, however, that such -------- ------- commitment shall be subject only to customary conditions (other than financing) and such investment shall be consummated within 180 days after the end of such ~~sale and (ii~~360-day period) an amount equal to ~~100% of the Net Available Cash from~~ such Asset Sale is applied by the Company (or such Restricted Subsidiary, as the case may be) within 270 days from the date of such Asset Sale either: (A) to prepay, repay, redeem or purchase any Indebtedness that by its terms is not subordinate to the Notes or any Guarantee and, in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and (B) to: (1) make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash not applied ~~within 270 days after the consummation of an Asset Sale as provided in clauses~~ pursuant to clause (A), in Additional Assets (Bincluding by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary) or and (Cii) apply such excess Net -- Available Cash (to the extent not applied pursuant to clause (i)) as provided in paragraphs (b) through (f) of ~~paragraph~~ this Section 4.06; provided, however, that in -------- ------- connection with any prepayment, repayment or purchase of Senior Indebtedness pursuant to clause (aA) above, the Company or such Restricted Subsidiary shall retire such Senior Indebtedness and shall cause the related loan commitment, if any, to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. The amount of such excess Net Available Cash required to be applied pursuant to clause (ii) above ~~will be deemed to~~ and not theretofore so applied shall constitute "Excess Proceeds." ~~When~~ Pending application of Net --------------- Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments. (b) If at any time the aggregate amount of Excess Proceeds ~~exceeds~~ not theretofore subject to an Excess Proceeds Offer totals at least $~~5.0~~ 5 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 Section 4.06(a)(i) (or, if the Company so elects, at any time within such period), make an offer ~~to an Holders~~ (an "~~Asset Sale~~ Excess Proceeds Offer"), ) to ~~purchase,~~ purchase from the holders thereof on a --------------------- pro rata basis ~~the~~ an aggregate principal amount of Notes and other pari passu debt ---------- obligations subject to a similar covenant (collectively, the "pari passu Notes") ---------------- equal ~~in amount~~ to the Excess Proceeds (~~and not just~~ rounded down to the ~~amount thereof that exceeds~~ nearest multiple of $~~5.0 million~~1,000) ~~(the "Asset Sale Offer Amount")~~on such date, at a purchase price ~~in cash in an amount~~ equal to 100% of the principal amount ~~thereof plus~~ of such Notes and pari passu Notes, plus, in each case, accrued ~~and unpaid~~ interest and ~~Liquidated Damages thereon~~ liquidated ---- ----- damages, if any, to the date of purchase (~~subject to~~ the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining "Excess Proceeds ~~following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture~~Payment"). Upon ----------------------- completion of an ~~Asset Sale~~ Excess Proceeds Offer, the amount of Excess Proceeds ~~then required~~ remaining after application pursuant to such Excess Proceeds Offer (including payment of the purchase price for Notes and pari passu ---- ----- Notes duly tendered) may be used by the Company for any corporate purpose (to the extent not otherwise ~~applied in accordance with~~ prohibited by this ~~covenant shall be reset to zero, subject to any subsequent Asset Sale~~Indenture). (c) In If the ~~event~~ aggregate principal amount (or accreted value, as applicable) of Notes and pari passu Notes validly tendered and not withdrawn in ---- ----- connection with an Excess Proceeds Offer exceeds the Excess Proceeds available therefor, such Excess Proceeds will be apportioned between the Notes and such pari passu Notes, with the portion of such Excess Proceeds payable in respect of ---- ----- the Notes equal to the amount of such Excess Proceeds multiplied by a fraction, the numerator of which is the outstanding principal amount of the ~~transfer~~ Notes and the denominator of ~~substantially all~~ which is the sum of the outstanding principal amount of the Notes and the outstanding principal amount (~~but not all~~or accreted value, as applicable) of the ~~property and assets of~~ relevant pari passu Notes. ---- ----- (d) For the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this ~~covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition~~Section 4.06, the ~~fair market value~~ following are deemed to be cash: (i) the assumption of ~~such properties and assets~~ Senior Indebtedness of the Company or ~~its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes~~ any - Restricted Subsidiary and the release of ~~this covenant.~~ the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (dii) ~~If at any time any non-cash consideration~~ 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; provided, however, that any Designated -------- ------- Noncash Consideration received by the Company or any Restricted Subsidiary in ~~connection with any~~ such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this proviso that is ~~converted into or sold or otherwise disposed~~ at that time outstanding, not to exceed $5 million (with the fair market value of ~~for cash~~each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value), ~~then such conversion or disposition~~ shall be deemed to ~~constitute an Asset Sale hereunder and~~ be cash for the ~~Net Available Cash thereof shall be applied in accordance with~~ purposes of this ~~covenant~~Section 4.06(d). (e) ~~Within~~ The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in the event that Excess Proceeds are received by the Company and the Company is required to repurchase Notes pursuant to this Section 4.06. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.06, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Indenture by virtue hereof. (1) Promptly, and in any event within 30 ~~calendar~~ days after the Company becomes obligated to make an Excess Proceeds Offer, the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have such Holder's Notes purchased by the Company either in whole or in part (subject to prorationing as hereinafter described in the event the Excess Proceeds Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the ~~amount~~ "Purchase -------- Date") and shall contain such information concerning the business of ~~Excess Proceeds exceeds $5.0 million,~~ the Company ---- which the Company in good faith believes will enable such Holders to make an informed decision (which will include (i) a description of material developments - in the Company~~, or~~ 's business subsequent to the ~~Trustee at the request and expense~~ date of the ~~Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared~~ latest reports furnished by the Company ~~stating:~~to the Holders pursuant to Section 4.02 and (ii) if material, -- appropriate pro forma financial information) and all instructions and materials necessary to tender Notes pursuant to the Excess Proceeds Offer, together with the information required to be provided pursuant to Section 4.06(f)(2). (2) Not later than the date upon which written notice of an Excess Proceeds Offer is delivered to the Trustee pursuant to Section 4.06(f)(1) above, the Company shall deliver to the Trustee an Officers' Certificate as to (i) ~~that an~~ the - amount of the Excess Proceeds Offer (the "Offer Amount"), (ii) the allocation of ------------ -- the Net Available Cash from the Asset ~~Sale~~ Dispositions pursuant to which such Excess Proceeds Offer is being made ~~pursuant~~ and (iii) the compliance of such allocation with --- the provisions of Section 4.06(a). On or 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 ~~4.11~~ 4.06(f). Upon the expiration of the period for which the Excess Proceeds Offer remains open (the "Offer ----- Period"), the Company shall deliver to the Trustee for cancellation the Notes or ------ portions thereof which have been properly tendered to and ~~that all Notes that~~ are ~~timely tendered will~~ to be accepted ~~for payment~~by the Company. The Trustee shall, ~~subject~~ on the Purchase Date, mail or deliver payment to ~~proration if~~ each tendering Holder in the amount of ~~Excess Proceeds~~ 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 ~~aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale~~ Offer Amount, the ~~amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and~~ Trustee shall deliver the ~~date Notes are to be purchased pursuant~~ excess to the ~~Asset Sale~~ Company immediately after the expiration of the Offer ~~(the "Asset Sale Purchase Date"~~Period for application in accordance with Section 4.06(b)~~, which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed;~~. (~~iii~~3) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder Holders electing to have ~~any Notes or portions thereof~~ a Note purchased ~~pursuant to the Asset Sale Offer will~~ shall be required to surrender ~~such Notes~~the Note, with ~~the~~ an appropriate form ~~entitled "Option of Holder to Elect Purchase" on the reverse of such Notes~~ duly completed, to the ~~Paying Agent~~ Company at the address specified in the notice at least three Business Days prior to the ~~close of business on the third Business Day preceding the Asset Sale~~ Purchase Date~~; (vi) that any Holder~~ . Holders shall be entitled to withdraw ~~such~~ their election if the ~~Paying Agent receives,~~ Trustee or the Company receives not later than ~~the close of business on the second~~ one Business Day ~~preceding~~ prior to the ~~Asset Sale~~ Purchase Date, a telegram, facsimile transmission or ~~letter,~~ letter setting forth the name of the Holder, the principal amount of ~~Notes~~ the Note which was delivered for ~~purchase,~~ purchase by the Holder and a statement that such Holder is withdrawing ~~such Holder's~~ his election to have such ~~Notes or portions thereof purchased pursuant to~~ Note purchased. If at the ~~Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to~~ expiration of the ~~Asset Sale~~ Offer ~~must specify~~ Period the aggregate principal amount of Notes surrendered by Holders exceeds the Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that ~~is being tendered for purchase~~only Notes in denominations of $1,000, ~~which principal amount must~~ or integral multiples thereof, shall be ~~$1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes~~ purchased). Holders whose ~~Certificated~~ Notes are ~~being~~ purchased only in part ~~will~~ shall be issued new ~~Certificated~~ Notes equal in principal amount to the unpurchased portion of the ~~Certificated Note or~~ Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f4) On At the ~~Asset Sale Payment Date~~time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with also deliver an Officers' Certificate ~~listing the~~ stating that such Notes ~~or portions thereof tendered~~ are to be accepted by the Company pursuant to and ~~accepted for payment. Subject to~~ in accordance with the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes terms of this Section ~~4.11~~4.06. A Note shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the ~~Trustee shall act as the Paying Agent~~surrendering Holder.

Appears in 1 contract

Sources: Indenture (Iron Age Corp)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted ~~Subsidiary~~ Subsidiaries to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale 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 Sale (which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions) involving in excess of $1,000,000) and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents and is received at the time of such sale and (ii) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied by the Company (Issuer or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Issuer, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); (2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), with a purchase price in excess of (x) prior to the Conversion Date, $150 million and (y) after the Conversion Date, the greater of $150.0 million and 5.5% of LTM EBITDA, at least 75% of the consideration from such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis), (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents (which determination may be made by the Issuer, at its option, either (x) on the date of contractually agreeing to such Asset Disposition or (y) at the time the Asset Disposition is completed); and (3) within ~~270~~ 365 days from the later of (A) the date of such Asset Sale either: (A) to prepay, repay, redeem or purchase any Indebtedness that by its terms is not subordinate to the Notes or any Guarantee and, in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and Disposition and (B) ~~to: (1) make an investment in properties or assets that replace~~ the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result receipt of the acquisition of such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash ~~not applied within 270 days after~~ from such Asset Disposition (as may be extended by an Acceptable Commitment as set forth below, the ~~consummation of an Asset Sale as provided in clauses (A~~“Proceeds Application Period”), (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis the principal amount of Notes equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in an amount equal to ~~100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon~~ such Net Available Cash is applied, to the ~~date of purchase~~ extent the Issuer or any Restricted Subsidiary, as the case may be, elects: (~~subject~~ i) (a) to the ~~right~~ extent such Net Available Cash are from an Asset Disposition of ~~each Holder of record on~~ Collateral (x) to reduce, prepay, repay or purchase any First Lien Obligations (other than the ~~relevant Record Date to receive interest due on~~ Prepetition Credit Agreement and the ~~relevant Interest Payment Date~~Notes), including Indebtedness under the Credit Agreements (other than the Prepetition Credit Agreement) (or any Refinancing Indebtedness in respect thereof); provided that the Issuer ratably offer to repurchase Notes (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer or Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in ~~this Indenture~~privately negotiated transactions, ~~and~~ (y) to make an offer (in accordance with the ~~following standards:~~ procedures set forth below for a Collateral Asset Disposition Offer or Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, or (iz) ~~If the aggregate principal amount~~ to reduce, prepay, repay or purchase any Indebtedness of ~~Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds~~a Non-Guarantor (in each case, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less other than ~~the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject~~ Indebtedness owed to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company Issuer or any ~~Subsidiary~~ Restricted Subsidiary); provided, however, that, in connection with any ~~Asset Sale is converted into~~ reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of ~~for cash, then~~ in connection with 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~~Disposition constituted “borrowing base assets”) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults reduced in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the principal amount so reduced, prepaid, repaid or purchased; (b) to the extent such Net Available Cash is from an Asset ~~Sale~~ Disposition that does not constitute Collateral, (w) to reduce, prepay, repay or purchase any Indebtedness secured by a Lien on such asset, (x) to reduce, prepay, repay or purchase senior Indebtedness; provided, that the Issuer ratably offer to repurchase Notes (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer ~~Amount~~ or Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, (y) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, or (z) to reduce, prepay, repay or purchase any Indebtedness of a Non-Guarantor (in each case, other than Indebtedness owed to the Issuer or any Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (i), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of ~~all Notes~~ any asset-based credit facility to the extent the assets sold or ~~portions thereof so accepted; and (iii~~otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) ~~deliver, or cause~~ to be ~~delivered,~~ reduced in an amount equal to the ~~Trustee~~ principal amount so reduced, prepaid, repaid or purchased; (a) to invest (including capital expenditures) in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary); or (b) to invest (including capital expenditures) in any one or more businesses (provided that any such business will be a Restricted Subsidiary), properties or assets that replace the ~~Notes so accepted together~~ businesses, properties and/or assets that are the subject of such Asset Disposition, with ~~an Officers' Certificate listing~~ any such investment made by way of a capital or other lease valued at the ~~Notes or portions thereof tendered~~ present value of the minimum amount of payments under such lease (as reasonably determined by the Issuer); provided, that the assets (including Capital Stock) acquired with the Net Available Cash of a disposition of Collateral are pledged as Collateral to the ~~Company and accepted~~ extent required under the Security Documents; provided, further, that a binding agreement shall be treated as a permitted application of Net Available Cash from the date of such commitment with the good faith expectation that an amount equal to Net Available Cash will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event of any Acceptable Commitment is later cancelled or terminated for ~~payment. Subject to the provisions of Section 4.01~~any reason before such amount is applied in connection therewith, ~~the Paying Agent~~ then such Applicable Proceeds shall ~~promptly send by first class mail~~constitute Collateral Excess Proceeds or Excess Proceeds, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the ~~Paying Agent.~~case may be; or

Appears in 1 contract

Sources: Indenture (Frontier Communications Corp)

Limitation on Sales of Assets and Subsidiary Stock. ~~(a)~~ The Company ~~shall~~ will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: : (i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ Disposition at least equal to the fair market value (as of the date on which a legally binding commitment for such Asset Disposition was entered into) of the shares and assets subject to such Asset Disposition, as such fair market value may be determined in good faith by the Company, whose determination shall be conclusive (including as to the value of all non-cash consideration); (ii) in the case of ~~the shares and assets subject to such~~ any Asset ~~Sale~~ Disposition (~~which~~ or series of related Asset Dispositions) having a fair market value ~~shall be~~ (as determined in good faith by the ~~Board~~ Company, whose determination shall be conclusive, as of ~~Directors~~ the date on which a legally binding commitment for ~~any transaction~~ such Asset Disposition was entered into) in excess of the greater of $177.5181.0 million and 20.0% of Four Quarter Consolidated EBITDA, at least 75.0% of the consideration therefor (excluding, in the case of an Asset Disposition (or series of ~~transactions~~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) ~~involving in excess of $1,000,000) and at least 75% of the consideration~~ received ~~therefor~~ by the Company or such Restricted Subsidiary for such Asset Disposition, when taken together with any consideration received by the Company or any Restricted Subsidiary in connection with any other Asset Dispositions since the Issue Date (on a cumulative basis), is in the form of ~~cash or Cash Equivalents~~ cash; and ~~is received at the time of such sale and~~ (iiiii) an amount equal to ~~100~~100.0% (as such percentage may be adjusted pursuant to clause (3) of the provisos to Section 411(b) and Section 411(c)) of the Net Available Cash from such Asset ~~Sale~~ Disposition (such amount, the “Net Available Cash Amount”) is applied by the Company (or ~~such~~ any Restricted Subsidiary, as the case may be) ~~within 270 days from the date of such Asset Sale either: (A) to prepay, repay, redeem or purchase any Indebtedness that by its terms is not subordinate to the Notes or any Guarantee and,~~ in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and (B) to: (1) make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). accordance with paragraphs (b) ~~Any Net Available Cash not applied within 270 days after the consummation of an Asset Sale as provided in clauses (A), (B)~~ or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis the principal amount of Notes equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon to the date of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) ~~In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01~~ below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Fifth Supplemental Indenture (Cornerstone Building Brands, Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted ~~Subsidiary~~ Subsidiaries to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale 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 Sale (which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions) involving in excess of $1,000,000) and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents and is received at the time of such sale and (ii) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied by the Company (or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors of the Company, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); (2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap) with a purchase price in excess of the greater of $75 million and 2.0% of Total Assets, at least 75% of the consideration from such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis) (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and (3) within ~~270~~ 450 days from the later of (A) the date of such Asset ~~Sale either~~Disposition and (B) the receipt of the Net Available Cash from such Asset Disposition (as may be extended by an Acceptable Commitment as set forth below, the “Proceeds Application Period”), an amount equal to the Net Available Cash (the “Applicable Proceeds”) is applied, to the extent the Company or any Restricted Subsidiary, as the case may be, elects: (Aa) (i) to prepay, ~~repay, redeem~~ repay or purchase any Indebtedness of a Non-Guarantor or that is secured by ~~its terms is not subordinate~~ a Lien (in each case, other than Indebtedness owed to the ~~Notes~~ Company or any ~~Guarantee and~~Restricted Subsidiary) or Indebtedness under the Existing Credit Agreement (or any Refinancing Indebtedness in respect thereof); provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (a), the ~~case of any~~ Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be reduced in an amount equal to the principal amount so prepaid, repaid or purchased; (ii) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to redeem Notes as described in Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions; or (iii) to prepay, repay or purchase Pari Passu Indebtedness; provided further that, to the extent the Company redeems, repays or repurchases Pari Passu Indebtedness pursuant to this clause (iii), the Company shall equally and ratably reduce Obligations under ~~any revolving credit facility~~the Notes as provided under Section 5.7, ~~effect a permanent reduction~~ through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the ~~availability under such revolving credit facility~~procedures set forth below for an Asset Disposition Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; ~~and~~or (Bb) ~~to:~~ (1i) ~~make~~ to invest in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary) or (ii) to invest in any one or more businesses (provided that any such business will be a Restricted Subsidiary), properties or assets that replace the businesses, properties or and/or assets that ~~were~~ are the subject of such Asset ~~Sale or in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock~~ Disposition, with any such investment made by way of a ~~Person that becomes a Restricted Subsidiary as a result~~ capital or other lease valued at the present value of the ~~acquisition~~ minimum amount of payments under such lease (as reasonably determined by the Company); provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Company that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such ~~Capital Stock; provided that such Person is, at~~ 450th day (the ~~time it becomes a Restricted Subsidiary, engaged in a Related Business~~“Applicable Commitment”); or (Cc) a any combination of ~~prepayment~~ the foregoing; provided that, (1) pending the final application of amounts equal to Net Available Cash in accordance with clause (a) or clause (b) above, the Company and ~~investment permitted~~ its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise use such Net Available Cash in any manner not prohibited by this Indenture (and elect not to have such use count as a use of cash set forth in clauses (Aa) and (B)b) above) and (2) the Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Applicable Proceeds attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (b) above with respect to such Asset Disposition. (b) ~~Any Net Available Cash not applied within 270~~ If, with respect to any Asset Disposition, at the expiration of the Proceeds Application Period with respect to such Asset Disposition, there remains Applicable Proceeds in excess of the greater of $50.0 million and 1.5% of Total Assets (such amount of Applicable Proceeds that are equal to the greater of $50.0 million and 1.5% of Total Assets, “Declined Excess Proceeds,” and such amount of Applicable Proceeds that are in excess of the greater of $50.0 million and 1.5% of Total Assets, “Excess Proceeds”), then subject to the limitations with respect to Foreign Dispositions set forth below, the Company shall make an offer (an “Asset Disposition Offer”) no later than ten business days after the ~~consummation~~ expiration of ~~an Asset Sale as provided in clauses (A)~~the Proceeds Application Period to all Holders of Notes and, ~~(B) or (C)~~ if required by the terms of ~~paragraph (a) above will be deemed~~ any Pari Passu Indebtedness, to ~~constitute "Excess Proceeds." When~~ all holders of such Pari Passu Indebtedness, to purchase the ~~aggregate~~ maximum principal amount of ~~Excess Proceeds exceeds $5.0 million~~such Notes and Pari Passu Indebtedness, ~~the Company will be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase~~as appropriate, on a pro rata ~~basis the principal amount~~ basis, that may be purchased out of ~~Notes equal in amount to the~~ such Excess ~~Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount")~~Proceeds, if any, at ~~a purchase price~~ an offer price, in the case of the Notes, in cash in an amount equal to 100% of the principal amount thereof (or in the event such other Indebtedness was issued with original issue discount, 100% of the accreted value thereof), plus accrued and unpaid ~~interest and Liquidated Damages thereon~~ interest, if any (or such lesser price with respect to Pari Passu Indebtedness, if any, as may be provided by the terms of such other Indebtedness), to, but not including, the date fixed for the closing of ~~purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date)~~such offer, in accordance with the procedures set forth in this ~~Indenture~~Indenture and the agreement governing the Pari Passu Indebtedness, as applicable, and, with respect to the Notes, in minimum denominations of €100,000 and in integral multiples of €1,000 in excess thereof. Notices of an Asset Disposition Offer shall be sent by first class mail or sent electronically, at least 10 days but not more than 60 days before the purchase date to each Holder of the Notes at such Holder’s registered address or otherwise in accordance with the ~~following standards:~~applicable procedures of Euroclear or Clearstream. The Company may satisfy the foregoing obligations with respect to the Applicable Proceeds by making an Asset Disposition Offer prior to the expiration of the Proceeds Application Period (the “Advance Offer”) with respect to all or a part of the Applicable Proceeds (the “Advance Portion”) in advance of being required to do so by this Indenture. (ic) To the extent that the aggregate amount (or accreted value, as applicable) of Notes and, if applicable, any other Pari Passu Indebtedness validly tendered or otherwise surrendered in connection with an Asset Disposition Offer made with Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) is less than the amount offered in an Asset Disposition Offer, the Company may include any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) in Declined Excess Proceeds, and use such Declined Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount (or accreted value, as applicable) of the Notes ~~surrendered by Holders thereof~~ or, if applicable, Pari Passu Indebtedness validly tendered pursuant to any Asset Disposition Offer exceeds the amount of Excess ~~Proceeds~~Proceeds (or, in the case of an Advance Offer, the ~~Trustee~~ Advance Portion), the Company shall ~~select~~ allocate the Excess Proceeds among the Notes and Pari Passu Indebtedness to be purchased on a pro rata ~~basis, based~~ basis on the ~~principal amount~~ basis of ~~Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If~~ the aggregate principal amount (or accreted value, as applicable) of tendered Notes tendered pursuant to such Asset 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 (subject to the and Pari Passu Indebtedness; provided that no Notes or other ~~provisions of this Indenture)~~Pari Passu Indebtedness will be selected and purchased in an unauthorized denomination. Upon completion of an any Asset ~~Sale~~ Disposition Offer, the amount of Applicable Proceeds and Excess Proceeds ~~then required to be otherwise applied in accordance with this covenant~~ shall be reset to at zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) ~~If at~~ To the extent that any ~~time~~ portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than euro, the amount thereof payable in respect of the Notes shall not exceed the net amount of funds in euro that is actually received by the Company upon converting such portion into euro. (e) Notwithstanding any other provisions of this Section 3.5, (i) to the extent that any of or all the Net Available Cash of any Asset Disposition by a Foreign Subsidiary (a “Foreign Disposition”) is (x) prohibited or delayed by applicable local law, (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous organizational or administrative impediments from being repatriated to the United States, the portion of such Net Available Cash so affected will not be required to be applied in compliance with this Section 3.5, and such amounts may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation to the United States (the Company hereby agreeing to use reasonable efforts (as determined in the Company’s reasonable business judgment) to otherwise cause the applicable Foreign Subsidiary to within one year following the date on which the respective payment would otherwise have been required, promptly take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation), and if within one year following the date on which the respective payment would otherwise have been required, such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, applicable organizational impediment or other impediment, such repatriation will be promptly effected and such repatriated Net Available Cash will be promptly (and in any event not later than five (5) Business Days after such repatriation could be made) applied (net of additional Taxes payable or reserved against as a result thereof) (whether or not repatriation actually occurs) in compliance with this Section 3.5 and (ii) to the extent that the Company has determined in good faith that repatriation of any of or all the Net Available Cash of any Foreign Disposition would have an adverse Tax cost consequence with respect to such Net Available Cash (which for the avoidance of doubt, includes, but is not limited to, any prepayment whereby doing so the Company, the Issuer, any Restricted Subsidiary or any of their respective affiliates and/or equity partners would incur a tax liability, including a tax dividend, deemed dividend pursuant to Code Section 956 or a withholding tax), the Net Available Cash so affected may be retained by the applicable Foreign Subsidiary. The non-~~cash consideration~~ application of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default. (f) For the purposes of Section 3.5(a)(2), the following will be deemed to be cash: (1) the assumption by the transferee of Indebtedness or other liabilities, contingent or otherwise, of the Company or a Restricted Subsidiary (other than Subordinated Indebtedness of the Company or a Guarantor) or the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition; (2) securities, notes or other obligations received by the Company or any Restricted Subsidiary of the Company from the transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash and Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within 180 days following the closing of such Asset Disposition; (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with ~~any~~ such 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.Disposition; (e4) ~~Within 30 calendar days~~ consideration consisting of Indebtedness of the Company (other than Subordinated Indebtedness) received after the ~~date~~ Issue Date from Persons who are not the ~~amount of Excess Proceeds exceeds $5.0 million, the Company,~~ Company or ~~the Trustee at the request and expense of the Company, shall send to each Holder by first~~any Restricted Subsidiary; and (5) any Designated Non-~~class mail, postage prepaid, a notice prepared~~ Cash Consideration received by the Company ~~stating: (i) that~~ or any Restricted Subsidiary in such Asset Dispositions having an ~~Asset Sale Offer is being made~~ aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section ~~4.11~~ 3.5 that is at that time outstanding, not to exceed the greater of (i) $120.0 million and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) 3.0% of the ~~Asset Sale Offer Amount, the amount~~ Total Assets of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (~~v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes,~~ with the ~~form entitled "Option~~ fair market value of ~~Holder to Elect Purchase" on the reverse~~ each item of ~~such Notes completed, to the Paying Agent~~ Designated Non-Cash Consideration being measured at the ~~address specified~~ time received and without giving effect to subsequent changes in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11value). (fg) On To the ~~Asset Sale Payment Date~~extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company ~~shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit~~ will comply with the ~~Paying Agent,~~ applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions virtue thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Indenture (Primo Water Corp /CN/)

Limitation on Sales of Assets and Subsidiary Stock. (a) The ~~Company shall~~ Borrower will not, and ~~shall~~ will not permit any of its Restricted ~~Subsidiary~~ Subsidiaries to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition in excess of the Asset Disposition Threshold Amount unless: (i) the ~~Company~~ Borrower or such Restricted ~~Subsidiary~~ Subsidiary, as the case may be, receives consideration ~~at the time~~ (including by way of ~~such Asset Sale~~ relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the ~~fair market value~~ Fair Market Value (~~including as~~ such Fair Market Value to be determined on the ~~value~~ date of ~~all non-cash consideration~~contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset ~~Sale~~ Disposition; and (~~which fair market value shall be determined in good faith by the Board of Directors for~~ ii) with respect to (x) any such individual Asset Disposition transaction ~~(or series of transactions) involving~~ with respect to assets having a Fair Market Value in excess of $~~1,000,000~~5,000,000 or (y) any such Asset Dispositions transactions with respect to assets having a Fair Market Value in excess of $10,000,000, for all such transactions on an aggregate basis in any Fiscal Year, in each case of (x) and (y), at least 75% of the consideration from such Asset Dispositions (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received ~~therefor~~ by the ~~Company~~ Borrower or such Restricted Subsidiary pursuant to this clause (ii) since the Closing Date (on a cumulative basis), as the case may be, is in the form of cash or Cash Equivalents ~~and is received at~~ (as determined in accordance with the ~~time~~ provisions of ~~such sale~~ this Section 9.08 below); and (iiiii) an amount equal to 100% of the Net Available Cash from such Asset ~~Sale~~ Disposition of the Borrower and the Subsidiary Guarantors is applied ~~by the Company~~ and/or reinvested as (or such Restricted Subsidiary, as the case may be) within 270 days from the date of such Asset Sale either: (A) to prepay, repay, redeem or purchase any Indebtedness that by its terms is not subordinate and to the ~~Notes or any Guarantee and~~extent) required by Section 4.02(c); provided that, in pending the ~~case~~ final application of any such Net Available Cash in accordance with Section 4.02(c), the Borrower and its Restricted Subsidiaries may temporarily reduce Indebtedness ~~under~~ or otherwise use such Net Available Cash in any ~~revolving credit facility~~manner not prohibited by this Agreement. To the extent that any portion of Net Available Cash payable in respect of the Term Loans is denominated in a currency other than U.S. dollars, ~~effect a permanent reduction~~ the amount thereof payable in respect of the ~~availability under~~ Term Loans shall not exceed the net amount of funds in U.S. dollars that is actually received by the Borrower upon converting such ~~revolving credit facility; and~~ portion into U.S. dollars. For the purposes of clause (Ba)(ii) toof this Section 9.08, the following will be deemed to be cash: (1) ~~make an investment~~ the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Borrower or a Restricted Subsidiary (other than Subordinated Indebtedness of the Borrower or a Guarantor or Indebtedness or liabilities incurred in ~~properties or assets that replace the properties or assets that were the subject~~ contemplation of such Asset ~~Sale~~ Disposition) and the release of the Borrower or such Restricted Subsidiary from all liability on such Indebtedness or other liability in ~~properties or assets that will be used in a Related Business or~~connection with such Asset Disposition; (2) ~~acquire~~ securities, notes or other obligations received by the ~~Capital Stock~~ Borrower or any Restricted Subsidiary of ~~a Person~~ the Borrower from the transferee (including earn-outs or similar obligations) that ~~becomes~~ are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Disposition, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Disposition; (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the ~~acquisition~~ extent that the Borrower and each other Restricted Subsidiary are released from any Guarantee of payment of such ~~Capital Stock; provided that~~ Indebtedness in connection with such ~~Person is, at~~ Asset Disposition; (4) consideration consisting of Indebtedness of the ~~time it becomes a~~ Borrower (other than Subordinated Indebtedness) received after the Closing Date from Persons who are not the Borrower or any Restricted Subsidiary~~, engaged in a Related Business; or~~; (C5) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash not applied within 270 days after the consummation of an Asset Sale as provided in clauses (A), (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis the principal amount of Notes equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon to the date of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes any trade-in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject value applied to the ~~other provisions~~ purchase price of ~~this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to~~ any ~~subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and~~ replacement assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any Subsidiary acquired in connection with ~~any~~ such 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.Disposition; (e6) ~~Within 30 calendar days after the date the amount~~ any Designated Non-Cash Consideration received in respect of ~~Excess Proceeds exceeds $5.0 million~~such Asset Disposition having an aggregate Fair Market Value, ~~the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first~~taken together with all other Designated Non-~~class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made~~ Cash Consideration received pursuant to this ~~Section 4.11~~ clause (4) and that ~~all Notes~~ is at that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receivestime outstanding, not ~~later than the close~~ in excess of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.1115,000,000. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Term Loan Credit Agreement (Algoma Steel Group Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The ~~Company shall~~ Borrower will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the ~~Company~~ Borrower or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ 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 ~~Sale (which~~ Disposition, as such fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) may be determined (and shall be ~~determined~~ determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of the greater of $67,500,000 and 25.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated financial statements of the Borrower are available) in good faith by the ~~Board~~ Borrower, whose determination shall be conclusive (including as to the value of ~~Directors for~~ all noncash consideration); (ii) in the case of any ~~transaction~~ Asset Disposition (or series of ~~transactions~~related Asset Dispositions) ~~involving~~ having a fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) in excess of the greater of $~~1,000,000)~~ 67,500,000 and 25.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated financial statements of the Borrower are available, at least 7575.00% of the consideration 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 ~~therefor~~ by the ~~Company~~ Borrower or such Restricted Subsidiary is in the form of ~~cash or Cash Equivalents and is received at the time of such sale~~ cash; and (iiiii) to the extent required by Subsection 8.4(b), an amount equal to ~~100~~100.00% of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the ~~Company~~ Borrower (or ~~such~~ any Restricted Subsidiary, as the case may be) as provided therein. (b) In the event that on or after the Closing Date the Borrower or any Restricted Subsidiary shall make an Asset Disposition or a Recovery Event in respect of Collateral shall occur, subject to Subsection 8.4(a), an amount equal to 100.00% of the Net Available Cash from such Asset Disposition or Recovery Event shall be applied by the Borrower (or any Restricted Subsidiary, as the case may be) as follows: (i) first, either (x) if the Borrower or such Restricted Subsidiary elects, to the extent such Asset Disposition or Recovery Event is an Asset Disposition or Recovery Event of assets that constitute ABL Priority Collateral, to purchase, redeem, repay or prepay, to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof, Indebtedness under the Senior ABL Facility or (in the case of letters of credit, bankers’ acceptances or other similar instruments issued thereunder) cash collateralize any such Indebtedness within ~~270 days from~~ the time period required by such Indebtedness after the later of the date of such Asset ~~Sale either:~~Disposition or Recovery Event, as the case may be, and the date of receipt of such Net Available Cash or (y) to the extent the Borrower or such Restricted Subsidiary elects (by delivery of an officer’s certificate by a Responsible Officer to the Administrative Agent) to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary) with an amount equal to Net Available Cash received by the Borrower or another Restricted Subsidiary within (a) 365 days after the later of the date of such Asset Disposition or Recovery Event, as the case may be, and the date of receipt of such Net Available Cash (such period the “Reinvestment Period”) or, (b) if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 365 days to complete and is subject to a binding written commitment entered into during the Reinvestment Period, an additional 180 days after the last day of the Reinvestment Period (it being understood and agreed that if no such investment is made within the Reinvestment Period as extended by this clause (b), the Borrower shall make the prepayments required by Subsection 8.4(b)(ii) on the earlier to occur of (I) the last day of such Reinvestment Period as extended by this clause (b) and (II) the date the Borrower elects not to pursue such investment); (ii) second, (1) if no application of Net Available Cash election is made pursuant to preceding clause (i) with respect to such Asset Disposition or Recovery Event or (2) if such election is made to the extent of the balance of such Net Available Cash or equivalent amount after application in accordance with Subsection 8.4(b)(i), within ten Business Days after the end of the Reinvestment Period specified in clause (i) above (as extended pursuant to clause (y) of such clause (i)) (x) to the extent such Asset Disposition or Recovery Event is an Asset Disposition or Recovery Event of assets that constitute Collateral, to purchase, redeem, repay, prepay, make an offer to prepay or repurchase, or deliver a notice of redemption, in accordance with Subsection 4.4(e)(i) (subject to Subsection 4.4(h)) or the agreements or instruments governing the relevant Indebtedness described in clause (B) below subject to any provision under such agreement or instrument analogous to Subsection 4.4(h)), as applicable, (A) the Term Loans and (B) to ~~prepay~~the extent the Borrower or any Restricted Subsidiary is required by the terms thereof any Pari Passu Indebtedness on a pro rata basis with the Term Loans and (y) to the extent such Asset Disposition is an Asset Disposition of assets that do not constitute Collateral, to purchase, redeem, repay, ~~redeem~~ prepay, make an offer to prepay or ~~purchase~~ repurchase, or deliver a notice of redemption, in accordance with Subsection 4.4(e)(i) (subject to Subsection 4.4(h)) or the agreements or instruments governing any relevant Indebtedness ~~that by its terms is not subordinate~~ permitted under Subsection 8.1 (subject to any provision under such agreement or instrument analogous to Subsection 4.4(h)), as applicable, (A) the Term Loans and (B) to the ~~Notes~~ extent the Borrower or any ~~Guarantee and~~Restricted Subsidiary is required by the terms thereof, any other Indebtedness (other than Indebtedness subordinated in right of payment to the ~~case of any such Indebtedness under any revolving credit facility, effect~~ Term Loan Facility Obligations) on a ~~permanent reduction in~~ pro rata basis with the ~~availability under such revolving credit facility~~Term Loans; and (Biii) ~~to:~~third, to the extent of the balance of such Net Available Cash or equivalent amount after application in accordance with Subsections 8.4(b)(i) and (ii) above, to fund (to the extent consistent with any other applicable provision of this Agreement) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of Junior Debt); provided, however, that in connection with any prepayment, repayment, purchase or redemption of Indebtedness pursuant to clause (ii) above, the 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, purchased or redeemed; provided, further, that the Borrower (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that, such investment shall be made no earlier than the earliest of notice of the relevant Asset Disposition to the Administrative Agent, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with Subsection 8.4(b)(i) above with respect to such Asset Disposition. (c) Notwithstanding the foregoing provisions of this Subsection 8.4, the Borrower and its Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Subsection 8.4 except to the extent that the aggregate Net Available Cash from all Asset Dispositions and Recovery Events in respect of Collateral or equivalent amount that is not applied in accordance with this Subsection 8.4 exceeds $54,000,000 (any amounts below such threshold, the “Below Threshold Proceeds”), in which case the Borrower and its Subsidiaries shall apply all such Net Available Cash from such Asset Dispositions and Recovery Events or equivalent amount in accordance with Subsection 8.4(b)(iii). (d) For the purposes of Subsection 8.4(a)(ii), the following are deemed to be cash: (1) ~~make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or~~ Temporary Cash Investments and Cash Equivalents, (2) ~~acquire~~ the ~~Capital~~ assumption of Indebtedness of the Borrower (other than Disqualified Stock of ~~a Person~~ 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 ~~becomes~~ is no longer a Restricted Subsidiary as a result of ~~the acquisition of~~ such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash not applied within 270 days after the consummation of an Asset Sale as provided in clauses (A), (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer to an Holders (an "Asset Sale Offer")Disposition, to ~~purchase, on a pro rata basis~~ the extent that the Borrower and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of ~~Notes equal~~ such Indebtedness in ~~amount~~ connection with such Asset Disposition, (4) securities received by the Borrower or any Restricted Subsidiary from the transferee that are converted by the Borrower or such Restricted Subsidiary into cash within 180 days, (5) consideration consisting of Indebtedness of the Borrower or any Restricted Subsidiary, (6) Additional Assets, and (7) any Designated Noncash Consideration received by the Borrower or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to ~~the Excess Proceeds~~ this clause (~~and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"~~7), ~~at a purchase price in cash in~~ not to exceed an aggregate amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon to the date of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time ~~any non~~outstanding equal to the greater of $94,500,000 and 35.00% of Consolidated EBITDA for the most recently ended four-~~cash consideration received by~~ fiscal quarter period for which consolidated financial statements of the ~~Company or any Subsidiary~~ Borrower are available (with the Fair Market Value of each item of Designated Noncash Consideration being measured on the date a legally binding commitment for such Asset Disposition (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in 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 covenantvalue). (e) ~~Within 30 calendar days after~~ In connection with any Asset Disposition permitted under this Subsection 8.4 or a Disposition that is excluded from the ~~date the amount~~ definition of ~~Excess Proceeds exceeds $5.0 million~~“Asset Disposition”, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered NotesAdministrative Agent shall, and the ~~date Notes are to be purchased pursuant to~~ Lenders hereby authorize the ~~Asset Sale Offer (~~Administrative Agent to, execute such releases of Liens and take such other actions as the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults Borrower may reasonably request in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, connection with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11foregoing. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Incremental Term Loan Agreement (Floor & Decor Holdings, Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The ~~Company shall~~ Parent Borrower will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the ~~Company~~ Parent Borrower or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ 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 ~~Sale (which~~ Disposition, as such fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) may be determined (and shall be ~~determined~~ determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $25,000,000) in good faith by the ~~Board~~ Borrower Representative, whose determination shall be conclusive (including as to the value of ~~Directors for~~ all noncash consideration); (ii) in the case of any ~~transaction~~ Asset Disposition (or series of ~~transactions~~related Asset Dispositions) ~~involving in excess~~ having a fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) of $~~1,000,000) and~~ 25,000,000 or more, at least 7575.0% of the consideration 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 ~~therefor~~ by the ~~Company~~ Parent Borrower or such Restricted Subsidiary is in the form of ~~cash or Cash Equivalents and is received at the time of such sale~~ cash; and (iiiii) to the extent required by Subsection 8.4(b), an amount equal to ~~100~~100.0% of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the ~~Company~~ Parent Borrower (or ~~such~~ any Restricted Subsidiary, as the case may be) as provided therein. (b) In the event that on or after the Closing Date the Parent Borrower or any Restricted Subsidiary shall make an Asset Disposition or a Recovery Event in respect of Collateral shall occur, subject to Subsection 8.4(a), an amount equal to 100.0% of the Net Available Cash from such Asset Disposition or Recovery Event shall be applied by the Parent Borrower (or any Restricted Subsidiary, as the case may be) as follows: (i) first, either (x) if the Parent Borrower or such Restricted Subsidiary elects, to the extent such Asset Disposition or Recovery Event is an Asset Disposition or Recovery Event of assets that constitute ABL Priority Collateral, to purchase, redeem, repay or prepay, to the extent the Parent Borrower or any Restricted Subsidiary is required by the terms thereof, Indebtedness under the Senior ABL Facility or (in the case of letters of credit, bankers’ acceptances or other similar instruments issued thereunder) cash collateralize any such Indebtedness within ~~270 days from~~ the time period required by such Indebtedness after the later of the date of such Asset ~~Sale either:~~Disposition or Recovery Event, as the case may be, and the date of receipt of such Net Available Cash or (y) to the extent the Parent Borrower or such Restricted Subsidiary elects (by delivery of an officer’s certificate by a Responsible Officer to the Administrative Agent) to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Parent Borrower or another Restricted Subsidiary) within (x) 365 days after the later of the date of such Asset Disposition or Recovery Event, as the case may be, and the date of receipt of such Net Available Cash (such period the “Reinvestment Period”) or, (y) if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 365 days to complete and is subject to a binding written commitment entered into during the Reinvestment Period, an additional 180 days after the last day of the Reinvestment Period (it being understood and agreed that if no such investment is made within the Reinvestment Period as extended by this clause (y), the Borrowers shall make the prepayments required by Subsection 8.4(b)(ii) on the earlier to occur of (I) the last day of such Reinvestment Period as extended by this clause (y) and (II) the date the Borrower Representative elects not to pursue such investment); (ii) second, (1) if no application of Net Available Cash election is made pursuant to preceding clause (i) with respect to such Asset Disposition or Recovery Event or (2) if such election is made to the extent of the balance of such Net Available Cash or equivalent amount after application in accordance with Subsection 8.4(b)(i), within ten Business Days after the end of the Reinvestment Period specified in clause (i) above (as extended pursuant to clause (y) of such clause (i)) (x) to the extent such Asset Disposition or Recovery Event is an Asset Disposition or Recovery Event of assets that constitute Collateral, to purchase, redeem, repay, prepay, make an offer to prepay or repurchase, or deliver a notice of redemption, in accordance with Subsection 4.4(e)(i) (subject to Subsection 4.4(h)) or the agreements or instruments governing the relevant Indebtedness described in clause (B) below subject to any provision under such agreement or instrument analogous to Subsection 4.4(h)), as applicable, (A) the Term Loans and (B) to ~~prepay~~the extent the Parent Borrower or any Restricted Subsidiary is required by the terms thereof any Pari Passu Indebtedness on a pro rata basis with the Term Loans and (y) to the extent such Asset Disposition is an Asset Disposition of assets that do not constitute Collateral, to purchase, redeem, repay, ~~redeem~~ prepay , make an offer to prepay or ~~purchase~~ repurchase, or deliver a notice of redemption, in accordance with Subsection 4.4(e)(i) (subject to Subsection 4.4(h)) or the agreements or instruments governing any relevant Indebtedness ~~that by its terms is not subordinate~~ permitted under Subsection 8.1 (subject to any provision under such agreement or instrument analogous to Subsection 4.4(h)), as applicable, (A) the Term Loans and (B) to the ~~Notes~~ extent the Parent Borrower or any ~~Guarantee and~~Restricted Subsidiary is required by the terms thereof, any other Indebtedness (other than Indebtedness subordinated in right of payment to the ~~case of any such Indebtedness under any revolving credit facility, effect~~ Term Loan Facility Obligations) on a ~~permanent reduction in~~ pro rata basis with the ~~availability under such revolving credit facility~~Term Loans; and (Biii) ~~to:~~third, to the extent of the balance of such Net Available Cash or equivalent amount after application in accordance with Subsections 8.4(b)(i) and (ii) above, to fund (to the extent consistent with any other applicable provision of this Agreement) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of Junior Debt); provided, however, that in connection with any prepayment, repayment, purchase or redemption of Indebtedness pursuant to clause (ii) above, the Parent 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, purchased or redeemed; provided, further, that the Parent Borrower (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that, such investment shall be made no earlier than the earliest of notice of the relevant Asset Disposition to the Administrative Agent, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with Subsection 8.4(b)(i) above with respect to such Asset Disposition. (c) Notwithstanding the foregoing provisions of this Subsection 8.4, the Parent Borrower and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Subsection 8.4 except to the extent that (x) the aggregate Net Available Cash from all Asset Dispositions and Recovery Events in respect of Collateral or equivalent amount that is not applied in accordance with this Subsection 8.4 exceeds $20,000,000, in which case the Parent Borrower and its Subsidiaries shall apply all such Net Available Cash from such Asset Dispositions and Recovery Events or equivalent amount in accordance with Subsection 8.4(b) or (y) the terms of any Pari Passu Indebtedness would require Net Available Cash or the equivalent amount from such Asset Sales and Recovery Events to be applied to purchase, redeem, repay or prepay such Indebtedness prior to reaching such $20,000,000 threshold. (d) For the purposes of Subsection 8.4(a)(ii), the following are deemed to be cash: (1) ~~make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or~~ Temporary Cash Investments and Cash Equivalents, (2) ~~acquire~~ the ~~Capital~~ assumption of Indebtedness of the Parent Borrower (other than Disqualified Stock of ~~a Person~~ the Parent Borrower) or any Restricted Subsidiary and the release of the Parent 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 ~~becomes~~ is no longer a Restricted Subsidiary as a result of ~~the acquisition of~~ such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash not applied within 270 days after the consummation of an Asset Sale as provided in clauses (A), (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer to an Holders (an "Asset Sale Offer")Disposition, to ~~purchase, on a pro rata basis~~ the extent that the Parent Borrower and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of ~~Notes equal~~ such Indebtedness in ~~amount~~ connection with such Asset Disposition, (4) securities received by the Parent Borrower or any Restricted Subsidiary from the transferee that are converted by the Parent Borrower or such Restricted Subsidiary into cash within 180 days, (5) consideration consisting of Indebtedness of the Parent Borrower or any Restricted Subsidiary, (6) Additional Assets, and (7) any Designated Noncash Consideration received by the Parent Borrower or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to ~~the Excess Proceeds~~ this clause (~~and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"~~7), ~~at a purchase price in cash in~~ not to exceed an aggregate amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon to the date of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time ~~any non-cash consideration received by~~ outstanding equal to the ~~Company or any Subsidiary~~ greater of $35,000,000 and 5.50% of Consolidated Total Assets (with the Fair Market Value of each item of Designated Noncash Consideration being measured on the date a legally binding commitment for such Asset Disposition (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes 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 covenantvalue). (e) ~~Within 30 calendar days after~~ In connection with any Asset Disposition permitted under this Subsection 8.4 or a Disposition that is excluded from the ~~date the amount~~ definition of ~~Excess Proceeds exceeds $5.0 million~~“Asset Disposition”, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered NotesAdministrative Agent shall, and the ~~date Notes are to be purchased pursuant to~~ Lenders hereby authorize the ~~Asset Sale Offer (~~Administrative Agent to, execute such releases of Liens and take such other actions as the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults Borrower Representative may reasonably request in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, connection with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11foregoing. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Credit Agreement (SiteOne Landscape Supply, Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company ~~shall~~ will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ Disposition at least equal to the 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 $20.0 million) in good faith by the Board of Directors, whose determination shall be conclusive (including as to the value of all non-cash consideration), (ii) in the case of ~~the shares and assets subject to such~~ any Asset ~~Sale (which fair market value shall be determined in good faith by the Board of Directors for any transaction~~ Disposition (or series of ~~transactions~~related Asset Dispositions) ~~involving in excess~~ having a fair market value of $~~1,000,000) and~~ 20.0 million or more, at least 75% of the consideration 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 ~~therefor~~ by the Company or such Restricted Subsidiary is in the form of ~~cash or Cash Equivalents and is received at the time of such sale~~ cash, and (iiiii) an amount equal to 100% of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the Company (or ~~such~~ any Restricted Subsidiary, as the case may be) as follows: (A) first, either (x) to the extent the Company elects (or is required by the terms of any Bank Indebtedness, any Senior Indebtedness of the Company or any Note Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Note Guarantor), to prepay, repay or purchase any such Indebtedness (in each case other than Indebtedness owed to the Company or a Restricted Subsidiary) within ~~270~~ 365 days ~~from~~ after the later of the date of such Asset ~~Sale either:~~Disposition and the date of receipt of such Net Available Cash, or (y) 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 later of the date of such Asset Disposition and the date of receipt of such Net Available Cash, or, if such reinvestment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 365 days to complete, the period of time necessary to complete such project; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above (such balance, the “Excess Proceeds”), to ~~prepay~~make an offer to purchase Notes and (to the extent the Company or such Restricted Subsidiary elects, ~~repay~~or is required by the terms thereof) to purchase, redeem or ~~purchase~~ repay any other Senior Indebtedness ~~that by its terms is not subordinate~~ of the Company or a Restricted Subsidiary, pursuant and subject to Section 411(b) and Section 411(c) and the ~~Notes or any Guarantee and, in the case of any~~ agreements governing such ~~Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility~~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) ~~to:~~ above, to fund (to the extent consistent with any other applicable provision of this Indenture) any general corporate purpose (including the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A)(x) or (B) above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 411, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 411 except to the extent that the aggregate Net Available Cash from all Asset Dispositions that is not applied in accordance with this Section 411 exceeds $25.0 million. If the aggregate principal amount of Notes and other Indebtedness of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to clause (iii) (B) above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding principal amount of such Notes and the denominator of which is the sum of the outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. For the purposes of clause (ii) of paragraph (a) above, the following are deemed to be cash: (1) ~~make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or~~ Temporary Cash Investments and Cash Equivalents, (2) ~~acquire~~ the ~~Capital~~ assumption of Indebtedness of the Company (other than Disqualified Stock of ~~a Person~~ the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (3) Indebtedness of any Restricted Subsidiary that ~~becomes~~ is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the ~~acquisition~~ extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such ~~Capital Stock; provided~~ Indebtedness in connection with such Asset Disposition, (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such ~~Person is~~Restricted Subsidiary into cash within 180 days, (5) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary and (6) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause, not to exceed an aggregate amount at any time outstanding equal to 3% of Consolidated Tangible Assets (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time ~~it becomes a Restricted Subsidiary, engaged~~ received and without giving effect to subsequent changes in ~~a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B~~value). (b) ~~Any Net Available Cash not applied within 270 days after~~ In the ~~consummation~~ event of an Asset ~~Sale as provided in clauses (A~~Disposition that requires the purchase of Notes pursuant to Section 411(a)(iii)(B)~~, (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million~~, the Company will be required to purchase Notes tendered pursuant to an offer by the Company for the Notes (the “Offer”) at a purchase price of 100% of their principal amount plus accrued and unpaid interest to the purchase date in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 411(c). If the aggregate purchase price of the Notes tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of Notes, the remaining Net Available Cash will be available to the Company for use in accordance with Section 411(a)(iii)(B) (to repay other Indebtedness of the Company or a Restricted Subsidiary) or Section 411(a)(iii)(C). The Company shall not be required to make an ~~offer~~ Offer for Notes pursuant to this Section 411 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 411(a)(iii)(A)) is less than $25.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an ~~Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis the principal amount of Notes equal in amount~~ Offer is required with respect to the ~~Excess Proceeds~~ Net Available Cash from any subsequent Asset Disposition). (c) The Company shall, not later than 45 days after the Company becomes obligated to make an Offer pursuant to this Section 411, mail a notice to each Holder with a copy to the Trustee stating: (1) that an Asset Disposition that requires the purchase of a portion of the Notes has occurred and ~~not just~~ that such Holder has the ~~amount thereof that exceeds $5.0 million~~right (subject to the prorating described below) (to require the ~~"Asset Sale Offer Amount"),~~ Company to purchase a portion of such Holder’s Notes at a purchase price in cash ~~in an amount~~ equal to 100% of the principal amount ~~thereof~~ thereof, plus accrued and unpaid ~~interest and Liquidated Damages thereon~~ interest, if any, to the date of purchase (subject to Section 307); (2) the ~~right~~ circumstances and relevant facts and financial information regarding such Asset Disposition; (3) the repurchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed); (4) the instructions determined by the Company, consistent with this Section 411, that a Holder must follow in order to have its Notes purchased; and (5) the amount of ~~each Holder~~ the Offer. If, upon the expiration of ~~record on~~ the ~~relevant Record Date to receive interest due on~~ period for which the ~~relevant Interest Payment Date)~~Offer remains open, ~~in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If~~ the aggregate principal amount of Notes surrendered by Holders ~~thereof~~ exceeds the amount of ~~Excess Proceeds~~the Offer, the ~~Trustee~~ Company shall select the Notes to be purchased on a pro rata ~~basis, based on the principal amount of Notes tendered,~~ basis (with such adjustments as may be deemed appropriate by the ~~Trustee,~~ Company so that only Notes in denominations of $~~1,000~~ 2,000 or integral multiples ~~thereof~~ of $1,000 in excess thereof, shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) ~~If at~~ The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any ~~time any non-cash consideration received by the Company~~ other securities laws or ~~any Subsidiary~~ regulations in connection with ~~any Asset Sale is converted into or sold or otherwise disposed~~ the repurchase of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made Notes pursuant to this Section ~~4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if~~ 411. To the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) extent that the ~~Trustee will return to the Holder~~ provisions of ~~a Global Note that is being purchased in part, such Global Note~~ any securities laws or regulations conflict with ~~a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion~~ provisions of ~~such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to~~ this Section ~~4.11. (f) On the Asset Sale Payment Date~~411, the Company ~~shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit~~ will comply with the ~~Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal~~ applicable securities laws and regulations and will not be deemed to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of have breached its obligations under this Section ~~4.11, the Trustee shall act as the Paying Agent~~411 by virtue thereof.

Appears in 1 contract

Sources: Indenture (Graphic Packaging Holding Co)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company ~~shall~~ will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ Disposition at least equal to the fair market value (as of the date on which a legally binding commitment for such Asset Disposition was entered into) 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 $50.0 million) in good faith by the Company, whose determination shall be conclusive (including as to the value of all non-cash consideration); (ii) in the case of ~~the shares and assets subject to such~~ any Asset ~~Sale~~ Disposition (~~which~~ or series of related Asset Dispositions) having a fair market value ~~shall be~~ (as determined in good faith by the ~~Board~~ Company, whose determination shall be conclusive, as of ~~Directors~~ the date on which a legally binding commitment for ~~any transaction~~ such Asset Disposition was entered into) of $50.0 million or more, at least 75.0% of the consideration therefor (excluding, in the case of an Asset Disposition (or series of ~~transactions~~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) ~~involving in excess of $1,000,000) and at least 75% of the consideration~~ received ~~therefor~~ by the Company or such Restricted Subsidiary for such Asset Disposition, when taken together with any consideration received by the Company or any Restricted Subsidiary in connection with all other Asset Dispositions since the Reference Date (on a cumulative basis), is in the form of ~~cash or Cash Equivalents and is received at the time of such sale~~ cash; and (iiiii) an amount equal to ~~100~~100.0% (as such percentage may be adjusted pursuant to clause (3) of the proviso to this clause (iii)) of the Net Available Cash from such Asset ~~Sale~~ Disposition (such amount, the “Net Available Cash Amount”) is applied by the Company (or ~~such~~ any Restricted Subsidiary, as the case may be) as follows: (A) first, either (x) to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Credit Facility Indebtedness, any Senior Indebtedness of the Company or any Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness or Obligations in respect thereof or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness or Obligations in respect thereof (in each case other than Indebtedness owed to the Company or a Restricted Subsidiary) within ~~270~~ 540 days ~~from~~ after the later of the date of such Asset ~~Sale either:~~Disposition and the date of receipt of such Net Available Cash, or (y) to the extent the Company or such Restricted Subsidiary elects, to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Company or another Restricted Subsidiary) within 540 days after the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash, or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 540 days to complete the period of time necessary to complete such project; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above (such balance, the “Excess Proceeds”), to ~~prepay~~make an offer to purchase the Notes and (to the extent the Company or such Restricted Subsidiary elects, ~~repay~~or is required by the terms thereof) to make an offer to purchase, redeem or ~~purchase~~ repay and/or to purchase, redeem or repay any other Senior Indebtedness of the Company or a Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that ~~by its terms~~ is not ~~subordinate~~ a Subsidiary Guarantor, pursuant and subject to the ~~Notes~~ conditions of Section 411(b) and Section 411(c) and the agreements or instruments governing such other Indebtedness; and (C) third, to the extent of the balance of such Net Available Cash Amount or equivalent amount after application in accordance with clauses (A) and (B) above (including an amount equal to the amount of any purchase, redemption or repayment contemplated by clause (B) above that is declined or not accepted by any applicable holder) (the amount of such balance, “Declined Excess Proceeds”), to fund (to the extent consistent with any other applicable provision of this Indenture) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations or the making of other Restricted Payments pursuant to Section 409(b)(xv)); provided, however, that (1) in connection with any prepayment, repayment, purchase or redemption of Indebtedness pursuant to clause (A)(x) or (B) above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (2) the Company (or any ~~Guarantee and~~Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (A)(y) above with respect to such Asset Disposition; and (3) the foregoing percentage in this clause (iii) shall be reduced to (I) in the case of an Asset Disposition by the Company or any Restricted Subsidiary thereof (other than Opco or any Restricted Subsidiary thereof), (x) 50.0% if the Consolidated Total Leverage Ratio of the Company at the time of such Asset Disposition (or, at the Company’s option, on the date a legally binding commitment for such Asset Disposition was entered into) would be equal to or less than 6.25:1.00 and (y) 0.0% if the Consolidated Total Leverage Ratio of the Company at the time of such Asset Disposition (or, at the Company’s option, on the date a legally binding commitment for such Asset Disposition was entered into) would be equal to or less than 5.75:1.00 or (II) in the case of an Asset Disposition by Opco or any Restricted Subsidiary thereof, (x) 50.0% if the Consolidated Total Leverage Ratio of Opco at the time of such Asset Disposition (or, at the Company’s option, on the date a legally binding commitment for such Asset Disposition was entered into) would be equal to or less than 6.25:1.00 and (y) 0.0% if the Consolidated Total Leverage Ratio of Opco at the time of such Asset Disposition (or, at the Company’s option, on the date a legally binding commitment for such Asset Disposition was entered into) would be equal to or less than 5.75:1.00, in each case after giving pro forma effect to any application of such Net Available Cash as set forth herein (any Net Available Cash in respect of Asset Dispositions not required to be applied in accordance with this clause (iii) as a result of the application of this proviso shall collectively constitute “Total Leverage Excess Proceeds”). Notwithstanding the foregoing provision in Section 411(a)(iii), (I) to the extent that repatriating any or all of the Net Available Cash from any Asset Disposition by a Foreign Subsidiary (x) would result in material adverse tax consequences to New Blocker, New Blocker Holdings, Blocker Holdings, Passthrough Holdings, Management Holdings, the Company or one of its Subsidiaries (or, at the election of the Company in connection with an initial public offering or other restructuring of the Company, any Parent or IPO Vehicle, the Company or any of its Subsidiaries) or (y) (1) could reasonably be expected to be prohibited or delayed by or violate or conflict with applicable local law, (2) is restricted by applicable organizational documents or any agreement, (3) subject to other organizational or administrative impediments from being repatriated to the United States or (4) conflicts with the fiduciary duties of the applicable directors, or results in, or could reasonably be expected to result in, a material risk of personal or criminal liability for any applicable officer, director or manager (in the case of the foregoing clauses (x) and (y), as determined in good faith by the Company, which determination shall be conclusive), the portion of such Net Available Cash so affected will not be required to be applied in compliance with Section 411(a)(iii), and such amounts may be retained by the applicable Foreign Subsidiary; provided that, in the case of clause (y), the Company shall take commercially reasonable efforts to cause the applicable Foreign Subsidiary to take all actions reasonably required by the applicable local law, the applicable organizational documents or agreements, the applicable organizational impediments or other impediment to permit such repatriation, and if such repatriation of any of such affected Net Available Cash can be achieved such repatriation will be promptly effected and such repatriated Net Available Cash will be applied (whether or not repatriation actually occurs) in compliance with Section 411(a)(iii) and (II) to the extent that dividending or distributing any or all of the Net Available Cash from any Asset Disposition by a Restricted Subsidiary to the Company would be restricted or limited under the Senior Credit Facilities, the Opco Senior Notes, any other Indebtedness of the Company and its Subsidiaries in existence on the Issue Date or any agreement that amends, modifies, renews, increases, decreases, supplements, refunds, replaces or refinances such Indebtedness ~~under~~ or any ~~revolving credit facility~~Indebtedness Incurred by the Company or any Restricted Subsidiary thereof in compliance with Section 407 and such restriction or limitation on the ability to make such dividend or distribution is otherwise permitted by Section 410, ~~effect~~ the portion of such Net Available Cash so affected will not be required to be applied in compliance with Section 411(a)(iii)(B), and such amounts may be retained by the applicable Restricted Subsidiary. The time periods set forth in this Section 411 shall not start until such time as the Net Available Cash may be repatriated or dividended or distributed, as applicable, whether or not such repatriation or such dividend or distribution actually occurs. Notwithstanding the foregoing provisions of this Section 411, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 411 except to the extent that the aggregate Net Available Cash from all Asset Dispositions or equivalent amount that is not applied in accordance with this Section 411 (excluding all Total Leverage Excess Proceeds) exceeds $40.0 million, in which case the Company and the Restricted Subsidiaries shall apply all such Net Available Cash or equivalent amount from such Asset Dispositions in excess of this $40.0 million threshold in accordance with this Section 411. If the aggregate principal amount of Notes and/or other Indebtedness of the Company or a ~~permanent reduction~~ Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in ~~the availability under such revolving credit facility; and~~ connection with an offer pursuant to clause (B) ~~to:~~ above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding principal amount of such Notes and the denominator of which is the sum of the outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. For the purposes of Section 411(a)(ii), the following are deemed to be cash: (1) ~~make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or~~ Temporary Cash Investments and Cash Equivalents; (2) ~~acquire~~ the ~~Capital~~ assumption of Indebtedness of the Company (other than Disqualified Stock of ~~a Person~~ the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition; (3) Indebtedness of any Restricted Subsidiary that ~~becomes~~ is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the ~~acquisition~~ extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such ~~Capital Stock~~Indebtedness in connection with such Asset Disposition; ~~provided~~ (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such ~~Person is, at~~ Restricted Subsidiary into cash within 180 days; (5) consideration consisting of Indebtedness of the ~~time it becomes a~~ Company or any Restricted Subsidiary~~, engaged in a Related Business~~; or (C6) ~~a combination of prepayment and investment permitted by clauses (A)~~ Additional Assets; and (B7) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate fair market value (as determined in good faith by the Company, which determination shall be conclusive), taken together with all other Designated Noncash Consideration received pursuant to this clause (7), not to exceed an aggregate amount at any time outstanding equal to the greater of $133.0 million and 11.50% of Consolidated Tangible Assets (with the fair market value (as determined in good faith by the Company, which determination shall be conclusive) of each item of Designated Noncash Consideration being measured on the date a legally binding commitment for such Asset Disposition (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in value). (b) ~~Any Net Available Cash not applied within 270 days after~~ In the ~~consummation~~ event of an Asset ~~Sale as provided in clauses (A~~Disposition that requires the purchase of Notes pursuant to Section 411(a)(iii)(B)~~, (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million~~, the Company will be required to ~~make~~ purchase Notes tendered pursuant to an offer ~~to an Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis~~ by the ~~principal amount of~~ Company for the Notes ~~equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million)~~ (the ~~"Asset Sale Offer Amount"),~~ “Offer”) at a purchase price ~~in cash in an amount equal to 100~~of 100.0% of ~~the~~ their principal amount ~~thereof~~ plus accrued and unpaid interest ~~and Liquidated Damages thereon~~ to but not including the date of purchase ~~(subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date),~~ in accordance with the procedures (including prorating in the event of oversubscription) set forth in ~~this Indenture, and in accordance with the following standards: (i)~~ Section 411(c). If the aggregate ~~principal amount~~ purchase price of ~~Notes surrendered by Holders thereof exceeds~~ the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to ~~such Asset Sale~~ the Offer is less than the ~~Excess Proceeds~~Net Available Cash allotted to the purchase of Notes, the ~~Company may use any~~ remaining ~~Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject~~ Net Available Cash will be available to the ~~other provisions of this Indenture). Upon completion of an Asset Sale Offer,~~ Company and the ~~amount of Excess Proceeds then required to be otherwise applied~~ Restricted Subsidiaries for use in accordance with Section 411(a)(iii)(B) (to repay other Indebtedness of the Company or a Restricted Subsidiary) or Section 411(a)(iii)(C). The Company shall not be required to make an Offer for Notes pursuant to this ~~covenant~~ Section 411 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 411(a)(iii)(A)) is less than $40.0 million for any particular Asset Disposition (which lesser amounts shall be ~~reset~~ carried forward for purposes of determining whether an Offer is required with respect to ~~zero, subject to~~ the Net Available Cash from any subsequent Asset ~~Sale~~Disposition). No Note will be repurchased in part if less than the Minimum Denomination in original principal amount of such Note would be left outstanding. The provisions under this Indenture relating to the Company’s obligation to make an Offer for Notes pursuant to this Section 411 may be waived or modified with the written consent of the Holders of a majority in principal amount of the Notes. (c) ~~In the event of the transfer of substantially all (but~~ The Company shall, not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar later than 45 days after the ~~date the amount of Excess Proceeds exceeds $5.0 million~~Company becomes obligated to make an Offer pursuant to this Section 411, ~~the Company, or the Trustee at the request and expense of the Company, shall~~ send a notice to each Holder ~~by first-class mail, postage prepaid,~~ with a ~~notice prepared by~~ copy to the ~~Company~~ Trustee stating: : (i1) that an Asset ~~Sale Offer is being made pursuant to this Section 4.11 and~~ Disposition that ~~all Notes that are timely tendered will be accepted for payment, subject to proration if~~ requires the ~~amount~~ purchase of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment portion of the ~~Asset Sale Offer Amount with respect thereto, all~~ Notes ~~or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from~~ has occurred and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder ~~is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to~~ has the ~~Asset Sale Offer;~~ right (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.subject

Appears in 1 contract

Sources: Indenture (Core & Main, Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any restricted Subsidiary to, directly or indirectly, sell, transfer or otherwise dispose of (collectively, a "disposition") any Capital Stock of any Person that owns, directly or indirectly, all or a significant portion of the Tubular Business, unless: (i) the Company or such Restricted Subsidiary receives consideration at the time of such disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the Capital Stock subject to such disposition; (ii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents; and (iii) an amount equal to 75% of the Net Available Cash from such disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) to make an offer to the holders of the Notes to purchase Notes pursuant to and subject to the conditions contained in the Indenture within 30 days from the later of the date of such disposition or the receipt of such Net Available Cash; provided, however, that the Company or such Restricted Subsidiary shall permanently retire such Notes. Pending application of Net Available Cash pursuant to this paragraph (a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce indebtedness under Credit Facilities. (b) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any other Asset ~~Sale~~ Disposition unless: (i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset ~~Sale~~ Disposition at least equal to the fair market value (including as to the value of all ~~non-~~non cash consideration) ), as determined in good faith by the Board of Directors of the Issuer of the shares and assets subject to such Asset ~~Sale~~ Disposition and (~~which fair market value shall be determined in good faith by the Board of Directors for any transaction (~~ii) with respect to Asset Dispositions other than Like-Kind Exchanges or ~~series of transactions) involving in excess of $1,000,000) and~~ Excluded Real Property Sales, at least 75% of the consideration thereof received ~~therefor~~ by the Company or such Restricted Subsidiary is in the form of cash or ~~Cash Equivalents and is received at the time of such sale~~ cash equivalents; and (iiiii) an amount equal to 100% of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be): (1) ~~within 270 days from~~ first, to the ~~date~~ extent the Company elects (or is required by the terms of ~~such Asset Sale either: (A)~~ any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or Indebtedness (other than any Disqualified Stock) of a Wholly Owned Subsidiary (in each case other than Indebtedness ~~that by its terms is not subordinate~~ owed to the ~~Notes~~ Company or ~~any Guarantee and~~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; (2) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (1), to the ~~case~~ extent the Company elects, to acquire Additional Assets within one year from the later of ~~any~~ the date of such ~~Indebtedness under any revolving credit facility~~Asset Disposition or the receipt of such Net Available Cash; and (3) third, ~~effect a permanent reduction~~ to the extent of the balance of such Net Available Cash after application in ~~the availability under such revolving credit facility; and (B) to:~~ accordance with clauses (1) ~~make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or~~ and (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash not applied within 270 days after the consummation of an Asset Sale as provided in clauses (A), ~~(B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required~~ to make an offer to ~~an Holders~~ the holders of the Notes (~~an "Asset Sale Offer"),~~ and to ~~purchase, on a pro rata basis~~ holders of other Senior Indebtedness of the ~~principal amount~~ Company designated by the Company to purchase Notes (and such other Senior Indebtedness of ~~Notes equal in amount~~ the Company) pursuant to and subject to the ~~Excess Proceeds~~ conditions contained in the Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (1) or (3) above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and ~~not just~~ shall cause the ~~amount thereof that exceeds $5.0 million~~related loan commitment (if any) ~~(the "Asset Sale Offer Amount"), at a purchase price in cash~~ to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of Section 4.15(b), the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with Section 4.15(b) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with Section 4.15(b) exceeds $25 million. Pending application of Net Available Cash pursuant to Section 4.15(b), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce indebtedness under Credit Facilities. (c) For the purposes of Sections 4.15(a) and (b), the following are deemed to be cash or cash equivalents: (A) the assumption of Senior Indebtedness of the Company, or Indebtedness of any Restricted Subsidiary, and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition; (B) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash; and (C) any reduction of Indebtedness Attributed to the U. S. Steel Group in connection with such Asset Disposition. (d) In the event of an Asset Disposition that requires the purchase of Notes (and other Senior Indebtedness) pursuant to Section (a)(iii) or (b) (iii)(3) above, the Company shall purchase Notes tendered pursuant to an offer by the Company for the Notes (and such other Senior Indebtedness) 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 thereof~~ accreted value thereof), without premium, plus accrued ~~and~~ but unpaid interest ~~and Liquidated Damages thereon 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 (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date),~~ such Senior Indebtedness) in accordance with the procedures (including prorating in the event of oversubscription) set forth in ~~this~~ the Indenture~~, and in accordance with the following standards: (i)~~ . If the aggregate ~~principal amount~~ purchase price of ~~Notes surrendered by Holders thereof~~ the securities tendered exceeds the ~~amount of Excess Proceeds~~Net Available Cash allotted to their purchase, the ~~Trustee~~ Company shall select the ~~Notes~~ securities to be purchased on a pro rata ~~basis~~basis but in round denominations, ~~based on~~ which in the ~~principal amount~~ case of the Notes ~~tendered, with such adjustments as may~~ will be ~~deemed appropriate by the Trustee, so that only Notes in~~ denominations of $1,000 ~~or integral multiples thereof shall be purchased. (ii) If the aggregate~~ principal amount of or multiples thereof. The Company shall not be required to make such an offer to purchase Notes ~~tendered~~ (and other Senior Indebtedness) pursuant to such Asset 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 (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (cSection 4.15(b) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash ~~thereof~~ available therefor is less than $25 million (which lesser amount shall be ~~applied in accordance~~ carried forward for purposes of determining whether such an offer is required with ~~this covenant~~respect to the Net Available Cash from any subsequent Asset Disposition). (e) ~~Within 30 calendar days after~~ The Company shall comply, to the ~~date~~ extent applicable, with the ~~amount~~ requirements of ~~Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense~~ Section 14(e) of the ~~Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by~~ Exchange Act and any other securities laws or regulations in connection with the ~~Company stating: (i) that an Asset Sale Offer is being made~~ repurchase of Notes pursuant to this Section ~~4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if~~ 4.15. To the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) extent that the ~~Trustee will return to the Holder~~ provisions of ~~a Global Note that is being purchased in part, such Global Note~~ any securities laws or regulations conflict with ~~a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion~~ provisions of ~~such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to~~ this Section ~~4.11. (f) On the Asset Sale Payment Date~~4.15, the Company shall ~~(i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit~~ comply with the ~~Paying Agent,~~ applicable securities laws and regulations and shall not be deemed to have breached its obligations under this clause by ~~10:00 a.m., New York City time, on~~ virtue of its compliance with such ~~date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes~~ securities laws or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agentregulations.

Appears in 1 contract

Sources: Indenture (Usx Corp)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company ~~shall~~ will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ Disposition at least equal to the fair market value (as of the date on which a legally binding commitment for such Asset Disposition was entered into) 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 $50.0 million) in good faith by the Company, whose determination shall be conclusive (including as to the value of all non-cash consideration); (ii) in the case of ~~the shares and assets subject to such~~ any Asset ~~Sale~~ Disposition (~~which~~ or series of related Asset Dispositions) having a fair market value ~~shall be~~ (as determined in good faith by the ~~Board~~ Company, whose determination shall be conclusive, as of ~~Directors~~ the date on which a legally binding commitment for ~~any transaction~~ such Asset Disposition was entered into) of $50.0 million or more, at least 75.0% of the consideration therefor (excluding, in the case of an Asset Disposition (or series of ~~transactions~~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) ~~involving in excess of $1,000,000) and at least 75% of the consideration~~ received ~~therefor~~ by the Company or such Restricted Subsidiary for such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis) received by the Company or any Restricted Subsidiary, is in the form of ~~cash or Cash Equivalents and is received at the time of such sale~~ cash; and (iiiii) an amount equal to ~~100~~100.0% (as may be adjusted pursuant to clause (3) of the proviso to this clause (iii)) of the Net Available Cash from such Asset ~~Sale~~ Disposition (such amount, the “Net Available Cash Amount”) is applied by the Company (or ~~such~~ any Restricted Subsidiary, as the case may be) as follows: (A) first, either (x) to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Credit Facility Indebtedness, any Senior Indebtedness of the Company or any Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness or Obligations in respect thereof or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness or Obligations in respect thereof (in each case other than Indebtedness owed to the Company or a Restricted Subsidiary) within ~~270~~ 540 days ~~from~~ after the later of the date of such Asset ~~Sale either:~~Disposition and the date of receipt of such Net Available Cash, or (y) to the extent the Company or such Restricted Subsidiary elects, to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Company or another Restricted Subsidiary) within 540 days after the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash, or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 540 days to complete the period of time necessary to complete such project; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above (such balance, the “Excess Proceeds”), to ~~prepay~~make an offer to purchase the Notes and (to the extent the Company or such Restricted Subsidiary elects, ~~repay~~or is required by the terms thereof) to make an offer to purchase, redeem or ~~purchase~~ repay and/or to purchase, redeem or repay any other Senior Indebtedness ~~that by its terms is not subordinate~~ of the Company or a Restricted Subsidiary, pursuant and subject to the ~~Notes~~ conditions of Section 411(b) and Section 411(c) and the agreements or instruments governing such other Senior Indebtedness; and (C) third, to the extent of the balance of such Net Available Cash Amount or equivalent amount after application in accordance with clauses (A) and (B) above (the amount of such balance, “Declined Excess Proceeds”), to fund (to the extent consistent with any other applicable provision of this Indenture) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations or the making of other Restricted Payments pursuant to Section 409(b)(xv)); provided, however, that (1) in connection with any prepayment, repayment, purchase or redemption of Indebtedness pursuant to clause (A)(x) or (B) above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; (2) the Company (or any ~~Guarantee and~~Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (A)(y) above with respect to such Asset Disposition; and (3) the foregoing percentage in this clause (iii) shall be reduced to (x) 50.0% if the Consolidated Total Leverage Ratio at the time of such Asset Disposition (or, at the Company’s option, on the date a legally binding commitment for such Asset Disposition was entered into) would be equal to or less than 6.25:1.00 and (y) 0.0% if the Consolidated Total Leverage Ratio at the time of such Asset Disposition (or, at the Company’s option, on the date a legally binding commitment for such Asset Disposition was entered into) would be equal to or less than 5.75:1.00, in each case after giving pro forma effect to any application of such Net Available Cash as set forth herein (any Net Available Cash in respect of Asset Dispositions not required to be applied in accordance with this clause (iii) as a result of the application of this proviso shall collectively constitute “Total Leverage Excess Proceeds”). Notwithstanding the foregoing provision in Section 411(a)(iii), to the extent that repatriating any or all of the Net Available Cash from any Asset Disposition by a Foreign Subsidiary (x) would result in material adverse tax consequences to New Blocker, New Blocker Holdings, Blocker Holdings, Passthrough Holdings, Management Holdings, the Company or one of its Subsidiaries (or, at the election of the Company in connection with an initial public offering or other restructuring of the Company, any Parent or IPO Vehicle, the Company or any of its Subsidiaries) or (y) (1) could reasonably be expected to be prohibited or delayed by applicable local law, (2) is restricted by applicable organizational documents or any agreement or (3) subject to other organizational or administrative impediments from being repatriated to the United States (in the case of the foregoing clauses (x) and (y), as determined in good faith by the Company, which determination shall be conclusive), the portion of such Net Available Cash so affected will not be required to be applied in compliance with Section 411(a)(iii), and such amounts may be retained by the applicable Foreign Subsidiary; provided that, in the case of clause (y), the Company shall take commercially reasonable efforts to cause the applicable Foreign Subsidiary to take all actions reasonably required by the applicable local law, the applicable organizational documents or agreements, the applicable organizational impediments or other impediment to permit such repatriation, and if such repatriation of any of such affected Net Available Cash can be achieved such repatriation will be promptly effected and such repatriated Net Available Cash will be applied (whether or not repatriation actually occurs) in compliance with Section 411(a)(iii). The time periods set forth in this Section 411 shall not start until such time as the Net Available Cash may be repatriated whether or not such repatriation actually occurs. Notwithstanding the foregoing provisions of this Section 411, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 411 except to the extent that the aggregate Net Available Cash from all Asset Dispositions or equivalent amount that is not applied in accordance with this Section 411 (excluding all Total Leverage Excess Proceeds) exceeds $40.0 million, in which case the Company and the Restricted Subsidiaries shall apply all such Net Available Cash or equivalent amount from such Asset Dispositions in excess of this $40.0 million threshold in accordance with this Section 411. If the aggregate principal amount of Notes and/or other Indebtedness ~~under any revolving credit facility~~of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, ~~effect a permanent reduction~~ redemption or repayment) in ~~the availability under such revolving credit facility; and~~ connection with an offer pursuant to clause (B) ~~to:~~ above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding principal amount of such Notes and the denominator of which is the sum of the outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. For the purposes of Section 411(a)(ii), the following are deemed to be cash: (1) ~~make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or~~ Temporary Cash Investments and Cash Equivalents; (2) ~~acquire~~ the ~~Capital~~ assumption of Indebtedness of the Company (other than Disqualified Stock of ~~a Person~~ the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition; (3) Indebtedness of any Restricted Subsidiary that ~~becomes~~ is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the ~~acquisition~~ extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such ~~Capital Stock~~Indebtedness in connection with such Asset Disposition; ~~provided~~ (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such ~~Person is, at~~ Restricted Subsidiary into cash within 180 days; (5) consideration consisting of Indebtedness of the ~~time it becomes a~~ Company or any Restricted Subsidiary~~, engaged in a Related Business~~; or (C6) ~~a combination of prepayment and investment permitted by clauses (A)~~ Additional Assets; and (B7) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate fair market value (as determined in good faith by the Company, which determination shall be conclusive), taken together with all other Designated Noncash Consideration received pursuant to this clause (7), not to exceed an aggregate amount at any time outstanding equal to the greater of $87.5 million and 11.50% of Consolidated Tangible Assets (with the fair market value (as determined in good faith by the Company, which determination shall be conclusive) of each item of Designated Noncash Consideration being measured on the date a legally binding commitment for such Asset Disposition (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in value). (b) ~~Any Net Available Cash not applied within 270 days after~~ In the ~~consummation~~ event of an Asset ~~Sale as provided in clauses (A~~Disposition that requires the purchase of Notes pursuant to Section 411(a)(iii)(B)~~, (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million~~, the Company will be required to purchase Notes tendered pursuant to an offer by the Company for the Notes (the “Offer”) at a purchase price of 100.0% of their principal amount plus accrued and unpaid interest to but not including the date of purchase in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 411(c). If the aggregate purchase price of the Notes tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of Notes, the remaining Net Available Cash will be available to the Company and the Restricted Subsidiaries for use in accordance with Section 411(a)(iii)(B) (to repay other Indebtedness of the Company or a Restricted Subsidiary) or Section 411(a)(iii)(C). The Company shall not be required to make an ~~offer~~ Offer for Notes pursuant to this Section 411 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 411(a)(iii)(A)) is less than $40.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an ~~Holders (an "~~Offer is required with respect to the Net Available Cash from any subsequent Asset ~~Sale Offer"~~Disposition)~~, to purchase, on a pro rata basis the~~ . No Note will be repurchased in part if less than $2,000 in original principal amount of ~~Notes equal in amount~~ such Note would be left outstanding. The provisions under this Indenture relating to the ~~Excess Proceeds~~ Company’s obligation to make an Offer for Notes pursuant to this Section 411 may be waived or modified with the written consent of the Holders of a majority in principal amount of the Notes. (c) The Company shall, not later than 45 days after the Company becomes obligated to make an Offer pursuant to this Section 411, send a notice to each Holder with a copy to the Trustee stating: (1) that an Asset Disposition that requires the purchase of a portion of the Notes has occurred and ~~not just~~ that such Holder has the ~~amount thereof that exceeds $5.0 million~~right (subject to the prorating described below) (to require the ~~"Asset Sale Offer Amount"),~~ Company to purchase a portion of such Holder’s Notes at a purchase price in cash ~~in an amount~~ equal to ~~100~~100.0% of the principal amount ~~thereof~~ thereof, plus accrued and unpaid ~~interest and Liquidated Damages thereon~~ interest, if any, to but not including the date of purchase (subject to the right of ~~each Holder~~ Holders of record on ~~the relevant Record Date~~ a record date to receive interest ~~due~~ on the relevant Interest Payment ~~Date~~Date falling prior to or on the purchase date); (2) the repurchase date (which shall be no earlier than 10 days nor later than 60 days from the date such notice is sent, except that such notice may be delivered more than 60 days prior to the purchase date if the purchase date is delayed as provided in clause (5) of this Section 411(c)); (3) the instructions determined by the Company, consistent with this Section 411, that a Holder must follow in order to have its Notes purchased; (4) the amount of the Offer, which amount may be contingent upon the Net Available Cash remaining following the application of Net Available Cash pursuant to Section 411(a)(iii)(A); and (5) if such notice is sent prior to the date the Net Available Cash attributable to such Asset Disposition is received, that such offer is conditioned upon receipt of such Net Available Cash and that the purchase date may, in ~~accordance with~~ the ~~procedures set forth in this Indenture~~Company’s discretion, ~~and in accordance with~~ be delayed until such time as the ~~following standards: (i) If~~ Net Available Cash is received. If, upon the expiration of the period for which the Offer remains open, the aggregate principal amount of Notes surrendered by Holders ~~thereof~~ exceeds the amount of ~~Excess Proceeds~~the Offer, the ~~Trustee~~ Company shall select the Notes to be purchased on a pro rata ~~basis, based on the principal amount of Notes tendered,~~ basis (with such adjustments as may be deemed appropriate by the ~~Trustee,~~ Company so that only Notes in denominations of $~~1,000~~ 2,000 or integral multiples of $1,000 in excess thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If ~~at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed~~ Holders of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is not less than ~~the~~ 90.0% in aggregate principal amount of ~~all~~ the outstanding Notes ~~timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale~~ of any series validly tender and do not withdraw such Notes in an Offer ~~Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes,~~ and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company ~~defaults in the payment~~ purchases all of the ~~Asset Sale Offer Amount with respect thereto, all~~ Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw series validly tendered and not withdrawn by such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment DateHolders, the Company ~~shall (i) accept for payment any Notes or portions thereof properly tendered and selected for~~ will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to ~~the Asset Sale Offer and Section 4.11(e) hereof~~such Offer, ~~(ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on~~ to redeem all Notes of such ~~date,~~ series that remain outstanding following such purchase at a price in ~~immediately available funds, an amount~~ cash equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results 100.0% of the ~~Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.~~principal am

Appears in 1 contract

Sources: Indenture (Core & Main, Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The ~~Company shall~~ Borrower will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the ~~Company~~ Borrower or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ 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 ~~Sale (which~~ Disposition, as such fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) may be determined (and shall be ~~determined~~ determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $25,000,000the greater of $67,500,000 and 25.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated financial statements of the Borrower are available) in good faith by the ~~Board~~ Borrower, whose determination shall be conclusive (including as to the value of ~~Directors for~~ all noncash consideration); (ii) in the case of any ~~transaction~~ Asset Disposition (or series of ~~transactions~~related Asset Dispositions) ~~involving in~~ having a fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) of $25,000,000 or m▇▇▇▇▇ excess of the greater of $~~1,000,000)~~ 67,500,000 and 25.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated financial statements of the Borrower are available, at least 7575.00% of the consideration 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 ~~therefor~~ by the ~~Company~~ Borrower or such Restricted Subsidiary is in the form of ~~cash or Cash Equivalents and is received at the time of such sale~~ cash; and (iiiii) to the extent required by Subsection 8.4(b), an amount equal to ~~100~~100.00% of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the ~~Company~~ Borrower (or ~~such~~ any Restricted Subsidiary, as the case may be) within 270 days from the date of such Asset Sale either: (A) to prepay, repay, redeem or purchase any Indebtedness that by its terms is not subordinate to the Notes or any Guarantee and, in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and (B) to: (1) make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as ~~a result of the acquisition of such Capital Stock;~~ provided ~~that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B)~~therein. (b) ~~Any Net Available Cash not applied within 270 days~~ In the event that on or after the ~~consummation of~~ Closing Date the Borrower or any Restricted Subsidiary shall make an Asset ~~Sale as provided~~ Disposition or a Recovery Event in ~~clauses (A), (B) or (C)~~ respect of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis the principal amount of Notes equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon to the date of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee Collateral shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zerooccur, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"Subsection 8.4(a), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results 100.00% of the Net Available Cash from such Asset ~~Sale Offer on~~ Disposition or ~~as soon as practicable after~~ Recovery Event shall be applied by the ~~Asset Sale Purchase Date. For purposes of this Section 4.11~~Borrower (or any Restricted Subsidiary, ~~the Trustee shall act~~ as the ~~Paying Agent.~~case may be) as follows:

Appears in 1 contract

Sources: Credit Agreement (Floor & Decor Holdings, Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The ~~Company shall~~ Issuer will not, and ~~shall~~ will not permit any of its Restricted ~~Subsidiary~~ Subsidiaries to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i1) the ~~Company~~ Issuer or such Restricted ~~Subsidiary~~ Subsidiary, as the case may be, receives consideration ~~at the time~~ (including by way of ~~such Asset Sale~~ relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (~~including as~~ such fair market value to be determined on the ~~value~~ date of ~~all non-cash consideration~~contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset ~~Sale~~ Disposition (~~which~~ 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) if the property or assets sold or otherwise disposed of have a fair market value ~~shall be determined in good faith by the Board of Directors for any transaction (or series of transactions) involving~~ in excess of $~~1,000,000) and~~ 7.5 million, at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents and is received at the time of such sale and (ii) an amount equal to 100% of the Net Available Cash from such Asset ~~Sale is applied~~ Disposition (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received by the ~~Company (~~Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; (3) ~~within 270 days~~ the Issuer or any of its Restricted Subsidiaries, at its respective option, will apply an amount equal to such Net Available Cash from ~~the date of such~~ any Asset ~~Sale either~~Disposition: (i) (A) to prepay, repay, redeem or purchase any Indebtedness ~~that by its terms is not subordinate~~ of a Non-Guarantor to the ~~Notes or any Guarantee and, in~~ extent the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and (B) to: (1) make an investment in properties property or assets that ~~replace the properties or assets that were~~ are the subject of such Asset ~~Sale~~ Disposition were owned by such Non-Guarantor or ~~in properties~~ Indebtedness that is secured by a Lien on the property or assets ~~that will be used~~ of such Non-Guarantor so disposed (in ~~a Related Business or~~ each case, other than Indebtedness owed to the Issuer or any Restricted Subsidiary) or Indebtedness under the Credit Agreement (or any Refinancing Indebtedness in respect thereof) within 365 days from the later of (1) the date of such Asset Disposition and (2) ~~acquire~~ the ~~Capital Stock~~ receipt of ~~a Person that becomes a~~ such Net Available Cash; provided, however, that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause (i), the Issuer or Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be reduced in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; or (B) to prepay, repay, redeem or purchase Pari Passu Indebtedness; provided, further, that, to the extent the Issuer or any Restricted Subsidiary prepays, repays, redeems or purchases Pari Passu Indebtedness pursuant to this clause (B), the Issuer shall equally and ratably reduce Obligations under the Notes as ~~a result~~ provided under Section 5.7, through open-market purchases (to the extent such purchases are at or above 100% of the ~~acquisition~~ principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to all Holders to purchase their Notes at 100% of ~~such Capital Stock~~the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be purchased to, but excluding, the date of purchase; ~~provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or~~and/or (Cii) ~~a combination~~ to invest in or commit to invest in Additional Assets within 365 days from the later of ~~prepayment and investment permitted by clauses~~ (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that a binding agreement shall be treated as a permitted application of Net Available Cash from the date of 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 that any Acceptable Commitment is later cancelled or terminated for any reason before the Net Available Cash is applied in connection therewith, the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided further that if any Second Commitment is later cancelled or terminated for any reason before such Net Available Cash is applied, then such Net Available Cash shall constitute Excess Proceeds; provided that, pending the final application of any such Net Available Cash in accordance with clause (i) or clause (ii) of Section 3.5(a)(3), the Issuer and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise use such Net Available Cash in any manner not prohibited by this Indenture. (b) ~~Any~~ If an amount equal to the Net Available Cash from Asset Dispositions is not applied or invested or committed to be applied or invested as provided, and within ~~270 days after~~ the ~~consummation~~ time period (including as extended) set forth in Section 3.5(a) (it being understood that any portion of such amount used to make an ~~Asset Sale~~ offer to purchase Notes, as ~~provided~~ described in ~~clauses (A~~Section 3.5(a)(3)(i)(B), ~~(B)~~ will be deemed to have been applied whether or ~~(C) of paragraph (a) above~~ not such offer is accepted), then such amount not applied or invested or committed to be applied or invested will be deemed to constitute "“Excess Proceeds~~." When~~ ” under this Indenture. Within 10 Business Days after the aggregate amount of Excess Proceeds under this Indenture exceeds $~~5.0 million~~75.0 million in any fiscal year, the ~~Company~~ Issuer will be required to make an offer ~~to an Holders~~ (an "“Asset ~~Sale~~ Disposition Offer"”) to all Holders of the Notes and, to the extent the Issuer elects or is required to by the terms of any Pari Passu Indebtedness, to holders or lenders of any other outstanding Pari Passu Indebtedness (including the Existing Notes), to ~~purchase, on a pro rata basis~~ purchase the maximum aggregate principal amount of the Notes ~~equal in amount~~ and any such Pari Passu Indebtedness to which such Asset Disposition Offer applies that is an integral multiple of $1,000 that may be purchased out of the Excess Proceeds ~~(and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"),~~ at ~~a purchase~~ an offer price in cash in an amount equal to 100% of the principal amount ~~thereof~~ of the Notes and such Pari Passu Indebtedness, or 100% of the accreted value thereof, if less (or, in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Pari Passu Indebtedness), in each case, plus accrued and unpaid ~~interest and Liquidated Damages thereon to~~ interest, if any, to, but excluding, the date fixed for the closing of ~~purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date)~~such offer, in accordance with the procedures set forth in this ~~Indenture~~Indenture or the agreements governing such Pari Passu Indebtedness, ~~and~~ as applicable; provided that no Note of less than $2,000 remains outstanding thereafter. The Issuer will deliver notice of such Asset Disposition Offer electronically or by first-class mail as provided under Section 3.5(g) with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the Notes Register (or while Notes are in the form of Global Notes, in accordance with the ~~following standards:~~Applicable Procedures), describing the transaction or transactions that constitute the Asset Disposition and offering to repurchase the Notes for the specified purchase price on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by this Indenture, or otherwise in accordance with the Applicable Procedures of DTC, and described in such notice. (ic) If To the extent that the aggregate ~~principal~~ amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, and Pari Passu Indebtedness so ~~that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes~~ validly tendered and not properly withdrawn pursuant to ~~such~~ an Asset ~~Sale~~ Disposition Offer is less than the Excess Proceeds, the ~~Company~~ Issuer or any Restricted Subsidiary may use any remaining Excess Proceeds ~~following~~ for any purpose not prohibited by this Indenture. If the ~~completion~~ aggregate principal amount of the Notes surrendered in any Asset ~~Sale~~ Disposition Offer ~~for general corporate purposes (subject~~ by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Issuer shall allocate the Excess Proceeds among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness; provided that no Notes or other ~~provisions of this Indenture)~~Pari Passu Indebtedness in an unauthorized denomination will remain outstanding after such purchase. Upon completion of an any Asset ~~Sale~~ Disposition Offer, the amount of Excess Proceeds ~~then required to be otherwise applied in accordance with this covenant~~ shall be reset ~~to zero, subject to~~ at zero (regardless of whether there are any ~~subsequent Asset Sale~~remaining Excess Proceeds upon such completion). (cd) In To the ~~event~~ extent that any portion of Net Available Cash payable in respect of the ~~transfer of substantially all (but not all)~~ Notes is denominated in a currency other than Dollars, the amount thereof payable in respect of the ~~property and assets~~ Notes shall not exceed the net amount of funds in Dollars that is actually received by the ~~Company and its Subsidiaries as an entirety to a Person in a transaction permitted under~~ Issuer upon converting such portion into Dollars. (e) [Reserved]. (f) For purposes of Section ~~5.01 below~~3.5(a)(2), the ~~successor corporation shall~~ following will be deemed to be cash: (i) the (x) assumption or (y) cancellation, extinguishment or termination of Indebtedness or other liabilities (as reflected on the Issuer’s or such Restricted Subsidiary’s most recent consolidated balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have ~~sold~~ been reflected on the ~~properties and assets~~ Issuer’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Issuer) contingent or otherwise, in each case, of the ~~Company~~ Issuer or a Restricted Subsidiary (other than Subordinated Indebtedness of the Issuer or a Guarantor) and, in the case of clause (x) only, the release of the Issuer or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition; (ii) securities, notes or other obligations received by the Issuer or any Restricted Subsidiary from the transferee that are converted by the Issuer or such Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Disposition; (iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Issuer and ~~its Subsidiaries~~ each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition; (iv) consideration consisting of Indebtedness of the Issuer or a Guarantor (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not ~~so transferred~~ the Issuer or any Restricted Subsidiary; and (v) any Designated Non-Cash Consideration received by the Issuer or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section 3.5 that is at that time outstanding, not to exceed the greater of $75.0 million and 25.0% of Consolidated EBITDA for ~~purposes of this covenant, and shall comply~~ the most recently ended Test Period (calculated on a Pro Forma Basis) (with ~~the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition,~~ the fair market value of ~~such properties~~ each item of Designated Non-Cash Consideration being measured at the time received and ~~assets of the Company or its Subsidiaries deemed~~ without giving effect to ~~be sold shall be deemed to be Net Available Cash for purposes of this covenant~~subsequent changes in value). (dg) ~~If at any time any non-cash consideration received by~~ Upon the ~~Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed~~ commencement of ~~for cash, then such conversion or disposition shall be deemed to constitute~~ an Asset ~~Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million~~Disposition Offer, the ~~Company~~Issuer shall send, or ~~the Trustee at the request and expense of the Company~~cause to be sent, ~~shall send to each Holder~~ electronically (when in global form) or by first-class ~~mail, postage prepaid~~mail (when in physical form), a notice ~~prepared by~~ to the ~~Company stating~~Trustee and to each Holder at its registered address (or while Notes are in the form of Global Notes, in accordance with the Applicable Procedures). The notice shall contain all 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: (i1) that an the Asset ~~Sale~~ Disposition Offer is being made pursuant to this Section ~~4.11~~ 3.5 and ~~that~~ that, to the extent lawful, all Notes ~~that are timely~~ tendered ~~will~~ and not withdrawn shall be accepted for ~~payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer~~payment (unless prorated); (ii2) the Asset ~~Sale Offer Amount~~Disposition payment amount, the ~~amount of Excess Proceeds that are available to be applied to purchase tendered Notes~~Asset Disposition offered price, and the date on which Notes ~~are to~~ tendered and accepted for payment shall be ~~purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date")~~purchased, which date shall be ~~a Business Day no earlier than~~ at least 30 ~~calendar~~ days ~~nor~~ and not later than 60 ~~calendar~~ days ~~subsequent to~~ from the date such notice is ~~mailed~~mailed (the “Asset Sale Payment Date”); (~~iii~~3) that any Notes ~~or portions thereof~~ not tendered or accepted for payment ~~will~~ shall continue to accrue ~~interest~~interest in accordance with the terms thereof; (iv4) that, unless the ~~Company~~ Issuer defaults in ~~the payment of the Asset Sale Offer Amount with respect thereto~~making such payment, ~~all~~ any Notes ~~or portions thereof~~ accepted for payment pursuant to the Asset ~~Sale~~ Disposition Offer shall cease to accrue interest ~~from~~ on and after the Asset Sale ~~Purchase~~ Payment Date; (v5) that ~~any Holder~~ Holders electing to have any Notes ~~or portions thereof~~ purchased pursuant to ~~the~~ any Asset ~~Sale~~ Disposition Offer ~~will~~ shall be required to surrender ~~such~~ the Notes, with the form entitled "“Option of Holder to Elect Purchase" ” on the reverse of ~~such Notes~~ the Note completed, to the Paying Agent at the address specified in the notice ~~prior to the close of business on the third~~ at least three (3) Business ~~Day preceding~~ Days before the Asset Sale ~~Purchase~~ Payment Date; (vi6) that ~~any Holder~~ Holders shall be entitled to withdraw ~~such~~ their election if the Paying Agent receives, not later than ~~the close of business on the second~~ two (2) Business ~~Day preceding~~ Days prior to the Asset Sale ~~Purchase~~ Payment Date, a ~~facsimile transmission or letter,~~ notice setting forth the name of the Holder, the principal amount of ~~Notes~~ the Note the Holder delivered for ~~purchase,~~ purchase and a statement that such Holder is withdrawing ~~such Holder's~~ its election to have such ~~Notes or portions thereof purchased pursuant to the Asset Sale Offer~~Note purchased; (~~vii~~7) that ~~any Holder electing to have~~ if the aggregate principal amount of Notes ~~purchased pursuant to~~ surrendered by Holders exceeds the Asset ~~Sale Offer must specify~~ Disposition payment amount, the ~~principal amount~~ Issuer shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Issuer so that ~~is being tendered for purchase, which principal amount must be~~ only Notes in denominations of at least $2,000 or integral multiples of $1,000 ~~or an integral multiple thereof,~~remain outstanding after purchase); and (~~viii) if Certificated~~ 8) that Holders whose Notes ~~have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being~~ were purchased only in part ~~will~~ shall be issued new ~~Certificated~~ Notes equal in principal amount to the unpurchased portion of the ~~Certificated Note~~ Notes surrendered (or transferred by book-entry). If any of the Notes ~~surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return~~ subject to the ~~Holder~~ Asset Disposition Offer are in the form of a Global ~~Note that is being purchased in part~~Note, the Issuer may modify such ~~Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal~~ notice to the ~~unpurchased portion of such Global Note; and (x) any other information~~ extent necessary to ~~enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11~~comply with the Applicable Procedures of the Depositary. (fh) If the Asset Sale Payment Date is on or after a record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. (i) On the Asset Sale Payment Date, the ~~Company shall~~ Issuer will, to the extent permitted by law, (i1) accept for payment ~~any~~ all Notes issued by it or portions thereof properly tendered ~~and selected for purchase~~ pursuant to the Asset ~~Sale Offer and Section 4.11(e~~Disposition Offer, (2) ~~hereof, (ii) irrevocably~~ deposit with the Paying ~~Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds,~~ Agent an amount equal to the aggregate Asset ~~Sale Offer Amount~~ Disposition payment in respect of all Notes or portions thereof so ~~accepted; and~~ tendered, and (~~iii~~3) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an ~~Officers'~~ Officer’s Certificate ~~listing~~ to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the ~~Company~~ Issuer. (j) The Issuer will comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and ~~accepted for payment~~any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Notes pursuant to this Section 3.5. ~~Subject to~~ To the extent that the provisions of ~~Section 4.01~~any securities laws or regulations conflict with the provisions of this Indenture, the ~~Paying Agent~~ Issuer will comply with the applicable securities laws and regulations and shall ~~promptly send~~ not be deemed to have breached its obligations under this Indenture by ~~first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions~~ virtue thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Indenture (Surgery Partners, Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company ~~shall~~ and Parent will not, and ~~shall~~ will not permit any of the Restricted ~~Subsidiary~~ Subsidiaries of Parent to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition of Collateral unless: (i) the ~~Company~~ Company, Parent or such Restricted ~~Subsidiary~~ Subsidiary, as the case may be, receives consideration ~~at the time of such Asset Sale~~ at least equal to the ~~fair market value~~ 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 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 ~~shares and assets~~ Collateral subject to such Asset ~~Sale~~ Disposition; (~~which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions~~ii) ~~involving in excess of $1,000,000) and~~ at least 75% of the consideration from such Asset Disposition received ~~therefor~~ by the ~~Company~~ Company, Parent or such Restricted ~~Subsidiary~~ Subsidiary, as the case may be, is in the form of cash or Cash Equivalents and ~~is received at the time of such sale and (ii) an amount equal to~~ 100% of the portion of the Net ~~Available Cash~~ 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 invested 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 ~~Sale~~ Disposition that is ~~applied by~~ not in the ~~Company (~~form of cash or ~~such Restricted Subsidiary,~~ Cash Equivalents is thereupon with its acquisition pledged as the ~~case may be) within 270 days from~~ First Priority Collateral to secure the ~~date of such Asset Sale either: (A) to prepay, repay, redeem or purchase any Indebtedness that by its terms is not subordinate to the Notes or any Guarantee and~~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 senior or equal to the Liens in favor of the Notes and the Note Guarantees and (b) any securities, notes or other obligations received by the Company, Parent or any such ~~Indebtedness under~~ Restricted Subsidiary from such transferee that are, within 180 days of the closing of the disposition of Collateral, 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. Any Net Proceeds from any ~~revolving credit facility, effect a permanent reduction in~~ Asset Dispositions of First Priority Collateral deposited into the ~~availability under such revolving credit facility; and (B) to: (1) make an investment in properties~~ Collateral Account or ~~assets that replace the properties or assets that were~~ 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 ~~Sale or in properties or assets~~ Disposition, which Additional Assets are thereupon with their acquisition added to the First Priority Collateral securing the Notes; provided that ~~will~~ a binding commitment entered into with such 360-day period shall be ~~used in~~ treated as a ~~Related Business or (2) acquire~~ 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 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 ~~Person that becomes a Restricted Subsidiary as a result~~ Foreign Subsidiary. All of the ~~acquisition~~ 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 ~~Capital Stock~~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 ~~Person is, at~~ 360-day period shall be treated as a permitted application of the ~~time it becomes~~ 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 the Collateral Account or make the subject of a ~~Restricted Subsidiary, engaged~~ Net Proceeds Letter of Credit in ~~a Related Business; or (C) a combination~~ an aggregate amount of ~~prepayment and investment permitted by clauses (A)~~ $5.0 million or less and (~~B). (b~~y) Additional Assets shall not include the Capital Stock of Foreign Subsidiaries for purposes of this requirement, unless the relevant Recovery Event involved the Capital Stock of a Foreign Subsidiary. Any Net ~~Available Cash~~ Proceeds from Asset Dispositions of Collateral or Recovery Events deposited into the Collateral Account may be withdrawn, 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 a Guarantor in accordance with 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 ~~within 270 days after the consummation of an Asset Sale~~ or invested as provided in ~~clauses (A), (B) or (C) of paragraph~~ this subsection (a) ~~above~~ within the applicable timeframe or in accordance with the Collateral Documents will be deemed to constitute "“Excess Collateral Proceeds." ” When the aggregate amount of Excess Collateral Proceeds exceeds $~~5.0~~ 10.0 million, within 30 days thereof, the Company will be required to make an offer (“Collateral Disposition Offer”) to an 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 (~~an "Asset Sale Offer"), to purchase,~~ on a pro rata ~~basis~~ basis) to which the ~~principal amount~~ Collateral Disposition Offer applies that may be purchased out of ~~Notes equal in amount to~~ the Excess ~~Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount")~~Collateral Proceeds, at ~~a purchase~~ an offer price in cash in an amount equal to 100% of the principal amount ~~thereof~~ of the Notes, plus accrued and unpaid interest ~~and Liquidated Damages thereon~~ to the date of ~~purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date)~~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 and Obligations that is secured by ABL 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 and Obligations, 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 ~~following standards:~~ 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 (i) 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 ~~thereof~~ and Pari Passu Lien Indebtedness tendered 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 such other Pari Passu Indebtedness to be purchased on a pro rata ~~basis, based on the principal amount of~~ basis (except that any Notes ~~tendered, with~~ represented by a note in global form will be selected by such ~~adjustments~~ method as DTC or its nominee or successor may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture)require. Upon completion of an each Asset ~~Sale~~ Disposition Offer, the amount of Excess Proceeds ~~then required to be otherwise applied in accordance with this covenant shall~~ will be reset to at zero~~, subject to any subsequent Asset Sale~~. (c) In The Collateral Disposition Offer or Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the ~~event~~ 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 ~~transfer~~ Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of ~~substantially~~ Notes and other Indebtedness required to be purchased pursuant to Section 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 (~~but not all~~and other Indebtedness required to be purchased pursuant to the last paragraph of Section 3.05(a)) and Pari Passu Indebtedness required to be purchased pursuant to Section 3.05(b), 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 a Collateral Disposition Offer or Asset Disposition Offer, as applicable, the Company will deliver a notice to the Trustee and each of the ~~property and assets~~ Holders of the ~~Company~~ Notes. The notice will contain all instructions and ~~its Subsidiaries~~ materials necessary to enable such Holders to tender Notes pursuant to the Collateral Disposition Offer or Asset Disposition Offer, as ~~an entirety to a Person in a transaction permitted under Section 5.01 below~~applicable. The notice, which will govern the ~~successor corporation shall be deemed to have sold the properties and assets~~ terms of the ~~Company and its Subsidiaries not so transferred for purposes of this covenant~~Collateral Disposition Offer or Asset Disposition Offer, ~~and shall comply with the provisions of this covenant with respect to such deemed sale~~ as ~~if it were an Asset Sale. In addition~~applicable, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company statingwill state: (i1) that an the Collateral Disposition Offer or Asset ~~Sale~~ Disposition Offer is being made pursuant to this Section ~~4.11~~ 3.05 and ~~that all Notes that are timely tendered~~ the length of time the Collateral Disposition Offer or Asset Disposition Offer will ~~be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer~~remain open; (ii2) the Asset ~~Sale~~ Disposition Offer Amount, the ~~amount of Excess Proceeds that are available to be applied to~~ purchase ~~tendered Notes,~~ price and the ~~date Notes are to be purchased pursuant to the~~ Asset ~~Sale Offer (the "Asset Sale~~ Disposition Purchase Date~~"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed~~; (~~iii~~3) that any ~~Notes or portions thereof~~ Security not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.inter

Appears in 1 contract

Sources: Indenture (EM Holdings LLC)

Limitation on Sales of Assets and Subsidiary Stock. ~~(a)~~ The Company ~~shall~~ will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless:: 123 (ia) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ 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 ~~Sale (which~~ Disposition, as such fair market value may be determined (and shall be ~~determined~~ 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 for~~ Directors, whose determination shall be conclusive (including as to the value of all noncash consideration), (b) in the case of any ~~transaction~~ Asset Disposition (or series of ~~transactions~~related Asset Dispositions) ~~involving in excess~~ having a fair market value of $~~1,000,000) and~~ 50,000,000 or more, at least 75% of the consideration 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 ~~therefor~~ by the Company or such Restricted Subsidiary is in the form of ~~cash or Cash Equivalents and is received at the time of such sale~~ cash, and (iic) an amount equal to 100% of the Net ~~Available Cash~~ Proceeds from such Asset ~~Sale~~ Disposition described in clause (b) is applied by the Company (or ~~such~~ any Restricted Subsidiary, as the case may be) ~~within 270 days from~~ in accordance with the ~~date~~ requirements of ~~such Asset Sale either:~~ Section 2.09(b)(iii): For the purposes of clause (Aii) of paragraph (b) above, the following are deemed to ~~prepay~~be cash: (1) Temporary Cash Investments and Cash Equivalents, ~~repay~~(2) the assumption of Indebtedness, ~~redeem or purchase any~~ other than Indebtedness that is by its terms ~~is not subordinate~~ subordinated to the ~~Notes~~ Obligations, of the Company (other than Disqualified Stock of the Company) or any ~~Guarantee and~~Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition, in (3) Indebtedness, other than Indebtedness that is by its terms subordinated to the ~~case~~ Obligations, of any ~~such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and (B) to: (1) make an investment in properties or assets~~ Restricted Subsidiary that ~~replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes~~ is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the ~~acquisition of such Capital Stock; provided~~ extent that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash not applied within 270 days after the consummation of an Asset Sale as provided in clauses (A), (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company ~~will be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis~~ and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of ~~Notes equal~~ such Indebtedness in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon to the date of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, connection with such ~~adjustments as may be deemed appropriate by the Trustee~~Asset Disposition, ~~so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased.~~ (ii4) If the aggregate principal amount of Notes tendered pursuant to such Asset 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 (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration securities received by the Company or any Restricted Subsidiary ~~in connection with any Asset Sale is~~ from the transferee that are converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company ~~stating:~~ or such Restricted Subsidiary into cash within 180 days, (i5) ~~that~~ Additional Assets and (6) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset ~~Sale Offer is being made~~ Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receivesclause, not ~~later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal~~ to exceed an aggregate amount ~~of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that~~ at any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be time outstanding equal to the ~~unpurchased portion~~ greater of ~~such Global Note; and~~ $164,000,000 and 5.75% of Consolidated Tangible Assets (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the ~~Paying Agent, by 10:00 a.m., New York City time, on such date,~~ 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 immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agentvalue).

Appears in 1 contract

Sources: Credit Agreement (Sally Beauty Holdings, Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (ai) The Company ~~shall~~ will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ Disposition at least equal to the ~~fair market value (including as to the value of all non-cash consideration)~~ Fair Market Value of the shares and assets subject to such Asset ~~Sale~~ Disposition, as such Fair Market Value (~~which fair market value shall~~ on the date a legally binding commitment for such Asset Disposition was entered into) may be determined in good faith by the ~~Board~~ Company, whose determination shall be conclusive (including as to the value of ~~Directors for~~ all noncash consideration); (ii) in the case of any ~~transaction~~ Asset Disposition (or series of ~~transactions~~related Asset Dispositions) ~~involving in excess~~ having a Fair Market Value (on the date a legally binding commitment for such Asset Disposition was entered into) of $~~1,000,000) and~~ 50.0 million or more, at least 7575.0% of the consideration 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) for such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis) received ~~therefor~~ by the Company or such Restricted Subsidiary is in the form of ~~cash~~ cash; provided that this Section 411(a)(ii) shall not apply in the case of an Asset Disposition of all or ~~Cash Equivalents and is received at~~ a portion of the ~~time of such sale~~ equity interests in, or assets of, the VS Business; and (iiiii) an amount equal to ~~100~~100.0% (as may be adjusted pursuant to the last proviso to this ‎Section 411(a)(iii)) of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the Company (or ~~such~~ any Restricted Subsidiary, as the case may be) as follows: (A) first, either (x) to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Senior Indebtedness of the Company or any Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness or Obligations in respect thereof or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness or Obligations in respect thereof (in each case other than Indebtedness owed to the Company or a Restricted Subsidiary) within ~~270~~ 365 days ~~from~~ after the later of the date of such Asset ~~Sale either:~~ Disposition and the date of receipt of such Net Available Cash, or (y) to the extent the Company or such Restricted Subsidiary elects, to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Company or another Restricted Subsidiary) within 365 days from the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 365 days to complete, the period of time necessary to complete such project; provided that the Company and its Restricted Subsidiaries will be deemed to have reinvested such Net Available Cash if and to the extent that, within 365 days after the Asset Disposition that generated the Net Available Cash, the Company or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement to consummate any such investment described in this clause (A) with the good faith expectation that such Net Available Cash will be applied to ~~prepay~~satisfy such commitment within 180 days of such commitment; (B) second, ~~repay~~to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above (such balance, ~~redeem~~ the “Excess Proceeds”), to make an offer to purchase Notes and (to the extent the Company or such Restricted Subsidiary elects, or is required by the terms thereof) to purchase, redeem, prepay or repay any other Senior Indebtedness of the Company or a Restricted Subsidiary, pursuant and subject to Section 411(b) and Section 411(c) and the agreements governing such other Indebtedness; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) above (the amount of such balance, “Declined Excess Proceeds”), to fund (to the extent consistent with any other applicable provision of this Indenture) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations or the making of other Restricted Payments); provided, however, that (1) in connection with any prepayment, repayment or purchase ~~any~~ of Indebtedness ~~that by its terms is not subordinate~~ pursuant to clause (A)(x) or (B) above, the Company or such Restricted Subsidiary will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the ~~Notes~~ principal amount so prepaid, repaid or purchased and (2) the Company (or any ~~Guarantee and~~Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (A)(y) above with respect to such Asset Disposition. Notwithstanding the foregoing provision in Section 411(a)(iii), to the extent that repatriating any or all of the Net Available Cash from any Asset Disposition by a Foreign Subsidiary (x) would result in material adverse tax consequences to the Company or any of its Subsidiaries or (y) is prohibited or delayed by applicable local law from being repatriated to the United States (in the case of the foregoing clauses (x) and (y), as reasonably determined by the Company in good faith which determination shall be conclusive), the portion of such Net Available Cash so affected will not be required to be applied in compliance with clause (iii) of the first paragraph of this covenant, and such amounts may be retained by the applicable Foreign Subsidiary; provided that, in the case of this clause (y), the Company shall take commercially reasonable efforts to cause the applicable Foreign Subsidiary to take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation, and if such repatriation of any of such affected Net Available Cash can be achieved such repatriation will be promptly effected and such repatriated Net Available Cash will be applied (whether or not repatriation actually occurs) in compliance with clause (iii) of the first paragraph of this covenant. The time periods set forth in this covenant shall not start until such time as the Net Available Cash may be repatriated whether or not such repatriation actually occurs. Notwithstanding the foregoing provisions of this Section 411, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 411 except to the extent that the aggregate Net Available Cash from all Asset Dispositions or equivalent amount that is not applied in accordance with this Section 411 exceeds $30.0 million. If the aggregate principal amount of Notes and/or other Indebtedness ~~under any revolving credit facility~~of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, ~~effect a permanent reduction~~ redemption or repayment) in ~~the availability under such revolving credit facility; and~~ connection with an offer pursuant to clause (B) ~~to:~~ above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding principal amount of such Notes and the denominator of which is the sum of the outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. For the purposes of Section 411(a)(ii), the following are deemed to be cash: (1) ~~make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or~~ Temporary Cash Investments and Cash Equivalents; (2) ~~acquire~~ the ~~Capital~~ assumption of Indebtedness of the Company (other than Disqualified Stock of ~~a Person~~ the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition; (3) Indebtedness of any Restricted Subsidiary that ~~becomes~~ is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the ~~acquisition of such Capital Stock; provided~~ extent that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash not applied within 270 days after the consummation of an Asset Sale as provided in clauses (A), (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company ~~will be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis~~ and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of ~~Notes equal~~ such Indebtedness in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon to the date of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, connection with such ~~adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased.~~ Asset Disposition; (ii4) If the aggregate principal amount of Notes tendered pursuant to such Asset 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 (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration securities received by the Company or any Restricted Subsidiary ~~in connection with any Asset Sale is~~ from the transferee that are converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company ~~stating:~~ or such Restricted Subsidiary into cash within 180 days; (i5) ~~that~~ consideration consisting of Indebtedness of the Company or any Restricted Subsidiary; (6) Additional Assets; and (7) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset ~~Sale Offer is being made~~ Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this ~~Section 4.11 and that all Notes that are timely tendered will be accepted for payment~~clause, ~~subject~~ not to ~~proration if the~~ exceed an aggregate amount ~~of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant~~ at any time outstanding equal to the ~~Asset Sale Offer;~~ greater of $100.0 million and 1.25% of Consolidated Tangible Assets (~~ii)~~ with the ~~Asset Sale Offer Amount, the amount~~ Fair Market Value of ~~Excess Proceeds that are available to be applied to purchase tendered Notes, and~~ each item of Designated Noncash Consideration being measured on the date ~~Notes are to be purchased pursuant to the Asset Sale Offer~~ a legally binding commitment for such disposition (~~the "Asset Sale Purchase Date")~~or, which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted if later, for ~~payment will continue to accrue interest; (iv) that, unless the Company defaults in~~ the payment of ~~the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant~~ such item) was entered into and without giving effect to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified subsequent changes in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11value). (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Indenture (L Brands, Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company ~~shall~~ will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ 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 ~~Sale (which~~ Disposition, as such fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) may be determined (and shall be ~~determined~~ determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $100.0 million) in good faith by the ~~Board~~ Company, whose determination shall be conclusive (including as to the value of ~~Directors for~~ all noncash consideration); (ii) in the case of any ~~transaction~~ Asset Disposition (or series of ~~transactions~~related Asset Dispositions) ~~involving in excess~~ having a Fair Market Value (on the date a legally binding commitment for such Asset Disposition was entered into) of $~~1,000,000) and~~ 100.0 million or more, at least 7575.0% of the consideration 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 ~~therefor~~ by the Company or such Restricted Subsidiary is in the form of ~~cash or Cash Equivalents and is received at the time of such sale~~ cash; and (iiiii) an amount equal to ~~100~~100.0% (as may be adjusted pursuant to clause (3) of the last proviso to this Section 411(a)(iii)) of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the Company (or ~~such~~ any Restricted Subsidiary, as the case may be) as follows: (A) first, either (x) to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Credit Facility Indebtedness, any Senior Indebtedness of the Company or any Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness (in each case other than Indebtedness owed to the Company or a Restricted Subsidiary) within ~~270~~ 450 days ~~from~~ after the later of the date of such Asset ~~Sale either:~~Disposition and the date of receipt of such Net Available Cash, or (y) to the extent the Company or such Restricted Subsidiary elects, to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Company or another Restricted Subsidiary) within 450 days from the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash, or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 450 days to complete, the period of time necessary to complete such project; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above (such balance, the “Excess Proceeds”), to ~~prepay~~make an offer to purchase the Notes and (to the extent the Company or such Restricted Subsidiary elects, ~~repay~~or is required by the terms thereof) to make an offer to purchase, redeem or repay and/or to purchase, redeem or repay any other Senior Indebtedness of the Company or a Restricted Subsidiary, pursuant and subject to Section 411(b) and Section 411(c) and the agreements governing such other Indebtedness; provided the offer to purchase ~~any Indebtedness that by its terms is not subordinate to~~ the Notes ~~or any Guarantee and, in the case of any~~ shall be on no less than a pro rata basis with such ~~Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility~~other Senior Indebtedness; and (BC) ~~to: (1) make an investment in properties or assets that replace~~ third, to the ~~properties or assets that were~~ extent of the ~~subject~~ balance of such ~~Asset Sale or~~ Net Available Cash after application in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by accordance with clauses (A) and (B). ) above (~~b) Any Net Available Cash not applied within 270 days after~~ the ~~consummation~~ aggregate of ~~an Asset Sale as provided in clauses (A~~any such amounts, “Declined Excess Proceeds”), to fund (to the extent consistent with any other applicable provision of this Indenture) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations and the making of other Restricted Payments); provided, however, that (1) in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A)(x) or (B) ~~or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million~~above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis the principal amount of Notes equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash permanently reduced in an amount equal to ~~100% of~~ the principal amount ~~thereof plus accrued and unpaid interest and Liquidated Damages thereon~~ so prepaid, repaid or purchased; (2) the Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the ~~date~~ Trustee of ~~purchase (subject to the right of each Holder of record on~~ the relevant ~~Record Date to receive interest due on~~ Asset Disposition, execution of a definitive agreement for the relevant ~~Interest Payment Date)~~Asset Disposition, ~~in accordance with~~ and consummation of the ~~procedures set forth in this Indenture,~~ relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (A)(y) above with respect to such Asset Disposition; and (3) the ~~following standards:~~ foregoing percentage in this Section 411(a)(iii) shall be reduced to 50% if the Consolidated Total Leverage Ratio would be equal to or less than 3.50:1.00 after giving pro forma effect to any application of such Net Available Cash as set forth herein (iany Net Available Cash in respect of Asset Dispositions not required to be applied in accordance with this clause (iii) as a result of the application of this proviso shall collectively constitute “Total Leverage Excess Proceeds”). Notwithstanding the foregoing provisions of this Section 411, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 411 except to the extent that the aggregate Net Available Cash from all Asset Dispositions or equivalent amount that is not applied in accordance with this Section 411 (excluding all Total Leverage Excess Proceeds) exceeds $100.0 million. If the aggregate principal amount of Notes ~~surrendered by Holders thereof~~ and/or other Indebtedness of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to clause (B) above exceeds the ~~amount of~~ Excess Proceeds, the ~~Trustee shall select~~ Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to ~~be purchased on~~ equal the lesser of (x) the Excess Proceeds amount multiplied by a ~~pro rata basis~~fraction, ~~based on~~ the numerator of which is the outstanding principal amount of such Notes ~~tendered~~and the denominator of which is the sum of the outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, ~~with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased.~~ and (iiy) If the aggregate principal amount of Notes validly tendered ~~pursuant to such Asset Sale Offer is less than~~ and not withdrawn. For the ~~Excess Proceeds~~purposes of Section 411(a)(ii), the ~~Company may use any remaining Excess Proceeds~~ following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required are deemed to be ~~otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale.~~ cash: (c1) In Temporary Cash Investments and Cash Equivalents; (2) the ~~event~~ assumption of ~~the transfer of substantially all (but not all) of the property and assets~~ Indebtedness of the Company ~~and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets~~ (other than Disqualified Stock of the ~~Company~~ Company) or any Restricted Subsidiary and ~~its Subsidiaries not so transferred for purposes of this covenant, and shall comply with~~ the ~~provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets~~ release of the Company or ~~its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any~~ such Restricted Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that from all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the liability on payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of ~~Notes delivered for purchase, and a statement that~~ such ~~Holder is withdrawing~~ Indebtedness in connection with such ~~Holder's election to have such Notes or portions thereof purchased pursuant to the~~ Asset ~~Sale Offer~~Disposition; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Indenture (Envision Healthcare Corp)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted ~~Subsidiary~~ Subsidiaries to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i1) the Company or such Restricted ~~Subsidiary~~ Subsidiary, as the case may be, receives consideration ~~at the time~~ (including by way of ~~such Asset Sale~~ relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (~~including~~ such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as to determined in good faith by the ~~value~~ Board of ~~all non-cash consideration)~~ Directors of the Company, of the shares and assets subject to such Asset ~~Sale~~ Disposition (~~which fair market value shall be determined~~ including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); (2) in ~~good faith by the Board of Directors for~~ any ~~transaction (~~such Asset Disposition, or series of ~~transactions) involving in excess of $1,000,000) and~~ 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 (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received ~~therefor~~ by the Company or such Restricted ~~Subsidiary~~ Subsidiary, as the case may be, is in the form of cash or Cash ~~Equivalents and is received at the time of such sale~~ Equivalents; and (ii3) an amount equal to 100% of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be~~) within 270 days from the date of such Asset Sale either~~: (i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness), (A) to prepay, ~~repay, redeem~~ repay or purchase any Indebtedness of a Non-Guarantor or that is secured by ~~its terms is not subordinate~~ a Lien (in each case, other than Indebtedness owed to the Company or any Restricted Subsidiary) or any First Priority Obligations, including Indebtedness under the Credit Agreement (or any Refinancing Indebtedness in respect thereof) within 450 days from the later of (1) the date of such Asset Disposition and (2) the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (i), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be reduced in an amount equal to the principal amount so prepaid, repaid or purchased; or (B) to prepay, repay or purchase Pari Passu Indebtedness at a price of no more than 100% of the principal amount of such Pari Passu Indebtedness plus accrued and unpaid interest to the date of such prepayment, repayment or purchase; provided further that, to the extent the Issuer redeems, repays or repurchases Pari Passu Indebtedness pursuant to this clause (B), the Issuer shall equally and ratably reduce Obligations under the Notes as provided under Section 5.7, through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; provided further, that, in addition to the foregoing, the Net Available Cash from an Asset Disposition of Collateral may not be applied to prepay, repay or purchase any Indebtedness other than First Priority Obligations, Second Lien Notes or ~~any Guarantee and~~Pari Passu Indebtedness of the Issuer or a Guarantor secured by a Lien on such Collateral; and/or (ii) to the extent the Company or such Restricted Subsidiary elects, to invest in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the ~~case~~ Company or another Restricted Subsidiary) within 450 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such ~~Indebtedness under any revolving credit facility~~reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Company that is executed or approved within such time will satisfy this requirement, ~~effect a permanent reduction in the availability under~~ so long as such ~~revolving credit facility~~investment is consummated within 180 days of such 450th day; and (B4) ~~to: (1) make an investment in properties or assets that replace the properties or assets that were the subject of~~ if such Asset ~~Sale~~ Disposition involves the disposition of Collateral, the Company or ~~in properties or assets that will be used in a Related Business or (2) acquire~~ such Subsidiary has complied with the ~~Capital Stock~~ provisions of ~~a Person that becomes a Restricted Subsidiary as a result of~~ this Indenture and the ~~acquisition of such Capital Stock~~Security Documents; provided that, pending the final application of any such Net Available Cash in accordance with clause (i) or clause (ii) in Section 3.5(a)(3), the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise use such Net Available Cash in any manner not prohibited by this Indenture; provided further that ~~such Person is~~notwithstanding the foregoing, at in the ~~time it becomes a Restricted Subsidiary~~event that after giving pro forma effect to the LifeCell Disposition the Consolidated Total Leverage Ratio is less than or equal to 1.5 to 1.0, ~~engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A~~Section 3.5(a)(2) and (B)3) shall not apply with respect to the LifeCell Disposition. (b) Any Net Available Cash from Asset Dispositions that is not applied ~~within 270 days after the consummation of an Asset Sale~~ or invested or committed to be applied or invested as provided in ~~clauses (A), (B) or (C) of~~ the preceding paragraph ~~(a) above~~ will be deemed to constitute "“Excess Proceeds~~." When~~ ” under this Indenture. On the 451st day after an Asset Disposition, if the aggregate amount of Excess Proceeds under this Indenture exceeds $~~5.0~~ 50.0 million, the ~~Company~~ Issuer will within 10 Business Days be required to make an offer (“Asset Disposition Offer”) to an all Holders ~~(an "Asset Sale Offer")~~of Notes issued under this Indenture and, to ~~purchase~~the extent the Issuer elects, ~~on a pro rata basis~~ to all holders of other outstanding Pari Passu Indebtedness, to purchase the maximum principal amount of Notes ~~equal in amount~~ and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess ~~Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount")~~Proceeds, at ~~a purchase~~ an offer price in ~~cash~~ respect of the Notes in an amount equal to 100% of the principal amount ~~thereof~~ of the Notes and Pari Passu Indebtedness, in each case, plus accrued and unpaid ~~interest and Liquidated Damages thereon to~~ interest, if any, to, but not including, the date of ~~purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date)~~purchase, in accordance with the procedures set forth in this ~~Indenture~~Section or the agreements governing the Pari Passu Indebtedness, as applicable, and, with respect to the Notes, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. The Issuer will deliver notice of such Asset Disposition Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with the ~~following standards:~~procedures of DTC, describing the transaction or transactions that constitute the Asset Disposition and offering to repurchase the Notes for the specified purchase price on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by this Indenture and described in such notice. (ic) If To the extent that the aggregate ~~principal~~ amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, and Pari Passu Indebtedness so ~~that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes~~ validly tendered and not properly withdrawn pursuant to ~~such~~ an Asset ~~Sale~~ Disposition Offer is less than the Excess Proceeds, the ~~Company~~ Issuer may use any remaining Excess Proceeds ~~following~~ for any purpose not prohibited by this Indenture. If the ~~completion~~ aggregate principal amount of the Notes surrendered in any Asset ~~Sale~~ Disposition Offer ~~for general corporate purposes (subject~~ by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Excess Proceeds shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the ~~other provisions~~ basis of ~~this Indenture)~~the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. Upon completion of an any Asset ~~Sale~~ Disposition Offer, the amount of Excess Proceeds ~~then required to be otherwise applied in accordance with this covenant~~ shall be reset to at zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) ~~If at~~ To the extent that any ~~time any non-cash consideration~~ portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than U.S. dollars, the amount thereof payable in respect of the Notes shall not exceed the net amount of funds in U.S. dollars that is actually received by the Company upon converting such portion into U.S. dollars. (e) For the purposes of Section 3.5(a)(2) hereof, the following will be deemed to be cash: (i) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Company or a Restricted Subsidiary (other than Subordinated Indebtedness of the Company or a Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition; (ii) securities, notes or other obligations received by the Company or any Restricted Subsidiary of the Company from the transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Disposition; (iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition; (iv) consideration consisting of Indebtedness of the Company (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company or any Restricted Subsidiary; and (v) any Designated Non-Cash Consideration received by the Company or any Restricted Subsidiary in such Asset ~~Sale~~ Dispositions having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section 3.5 that is ~~converted into or sold or otherwise disposed~~ at that time outstanding, not to exceed the greater of ~~for cash, then such conversion or disposition shall be deemed~~ $150.0 million and 1.75% of Total Assets (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to ~~constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied~~ subsequent changes in ~~accordance with this covenant~~value). (ef) ~~Within 30 calendar days after~~ Upon the ~~date the amount~~ commencement of ~~Excess Proceeds exceeds $5.0 million~~an Asset Disposition Offer, the ~~Company~~Issuer shall send, or cause to be sent, by first class mail, a notice to the Trustee ~~at the request~~ and ~~expense of the Company, shall send~~ to each Holder ~~by first-class mail~~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, ~~postage prepaid~~which shall govern the terms of the Asset Disposition Offer, ~~a notice prepared by the Company stating~~shall state: (i1) that an the Asset ~~Sale~~ Disposition Offer is being made pursuant to this Section ~~4.11~~ 3.5 and ~~that~~ that, to the extent lawful, all Notes ~~that are timely~~ tendered ~~will~~ and not withdrawn shall be accepted for ~~payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer~~payment (unless prorated); (ii2) the Asset ~~Sale Offer Amount~~Disposition payment amount, the ~~amount of Excess Proceeds that are available to be applied to purchase tendered Notes~~Asset Disposition offered price, and the date on which Notes ~~are to~~ tendered and accepted for payment shall be ~~purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date")~~purchased, which date shall be ~~a Business Day no earlier than~~ at least 30 ~~calendar~~ days ~~nor~~ and not later than 60 ~~calendar~~ days ~~subsequent to~~ from the date such ~~notice~~ notices is ~~mailed~~mailed (the “Asset Sale Payment Date”); (~~iii~~3) that any Notes ~~or portions thereof~~ not tendered or accepted for payment ~~will~~ shall continue to accrue ~~interest~~interest in accordance with the terms thereof; (iv4) that, unless the ~~Company~~ Issuer defaults in ~~the payment of the Asset Sale Offer Amount with respect thereto~~making such payment, ~~all~~ any Notes ~~or portions thereof~~ accepted for payment pursuant to the Asset ~~Sale~~ Disposition Offer shall cease to accrue interest ~~from~~ on and after the Asset Sale ~~Purchase~~ Payment Date; (v5) that ~~any Holder~~ Holders electing to have any Notes ~~or portions thereof~~ purchased pursuant to ~~the~~ any Asset ~~Sale~~ Disposition Offer ~~will~~ shall be required to surrender ~~such~~ the Notes, with the form entitled "“Option of Holder to Elect Purchase" ” on the reverse of ~~such Notes~~ the Note completed, to the Paying Agent at the address specified in the notice ~~prior to the close of business on the third~~ at least three Business ~~Day preceding~~ Days before the Asset ~~Sale Purchase~~ sale Payment Date; (vi6) that ~~any Holder~~ Holders shall be entitled to withdraw ~~such~~ their election if the Paying Agent receives, not later than ~~the close of business on the second~~ two Business ~~Day preceding~~ Days prior to the Asset Sale ~~Purchase~~ Payment Date, a ~~facsimile transmission or letter,~~ notice setting forth the name of the Holder, the principal amount of ~~Notes~~ the Note the Holder delivered for ~~purchase,~~ purchase and a statement that such Holder is withdrawing ~~such Holder's~~ its election to have such ~~Notes or portions thereof purchased pursuant to the Asset Sale Offer~~Note purchased; (~~vii~~7) that ~~any Holder electing to have~~ if the aggregate principal amount of Notes ~~purchased pursuant to~~ surrendered by Holders exceeds the Asset ~~Sale Offer must specify~~ Disposition payment amount, the ~~principal amount~~ Issuer shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Issuer so that ~~is being tendered for purchase, which principal amount must be~~ only Notes in denominations of $2,000 or integral multiples of $1,000 ~~or an integral multiple thereof,~~in excess thereof shall be purchased); and (~~viii) if Certificated~~ 8) that Holders whose Notes ~~have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being~~ were purchased only in part ~~will~~ shall be issued new ~~Certificated~~ Notes equal in principal amount to the unpurchased portion of the ~~Certificated Note~~ Notes surrendered (or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11transferred by book-entry). (fg) If the Asset Sale Payment Date is on or after a record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. (h) On the Asset Sale Payment Date, the ~~Company shall~~ Issuer will, to the extent permitted by law, (i1) accept for payment ~~any~~ all Notes issued by it or portions thereof properly tendered ~~and selected for purchase~~ pursuant to the Asset ~~Sale Offer and Section 4.11(e~~Disposition Offer, (2) ~~hereof, (ii) irrevocably~~ deposit with the Paying ~~Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds,~~ Agent an amount equal to the aggregate Asset ~~Sale Offer Amount~~ Disposition payment in respect of all Notes or portions thereof so ~~accepted; and~~ tendered, and (~~iii~~3) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an ~~Officers'~~ Officer’s Certificate ~~listing~~ to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the ~~Company~~ Issuer. (i) The Issuer will comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and ~~accepted for payment~~any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Notes pursuant to this Section 3.5. ~~Subject to~~ To the extent that the provisions of ~~Section 4.01~~any securities laws or regulations conflict with the provisions of this Indenture, the ~~Paying Agent~~ Company will comply with the applicable securities laws and regulations and shall ~~promptly send~~ not be deemed to have breached its obligations under this Indenture by ~~first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions~~ virtue thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Indenture (Kinetic Concepts Inc)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company ~~shall~~ will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ Disposition at least equal to the ~~fair market value (including as to the value of all non-cash consideration)~~ Fair Market Value of the shares and assets subject to such Asset ~~Sale~~ Disposition, as such Fair Market Value (~~which fair market value shall~~ on the date a legally binding commitment for such Asset Disposition was entered into) may be determined in good faith by the ~~Board~~ Company, whose determination shall be conclusive (including as to the value of ~~Directors for~~ all noncash consideration); (ii) in the case of any ~~transaction~~ Asset Disposition (or series of ~~transactions~~related Asset Dispositions) ~~involving in excess~~ having a Fair Market Value (on the date a legally binding commitment for such Asset Disposition was entered into) of $~~1,000,000) and~~ 50.0 million or more, at least 7575.0% of the consideration 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) for such Asset Disposition, together with all other Asset Dispositions since the Closing Date (on a cumulative basis) received ~~therefor~~ by the Company or such Restricted Subsidiary is in the form of ~~cash or Cash Equivalents and is received at the time of such sale~~ cash; and (iiiii) ~~an amount equal~~ if such Asset Disposition involves the Disposition of Collateral, the Company shall apply the Net Available Cash of such Asset Disposition (or the applicable portion thereof) in accordance with the provisions of Section 2.11(b)(ii). Notwithstanding the foregoing provision in Section 6.04(a)(iii), to ~~100%~~ the extent that repatriating any or all of the Net Available Cash from ~~such~~ any Asset ~~Sale~~ Disposition by a Foreign Subsidiary (x) would result in material adverse tax consequences to the Company or any of its Subsidiaries or (y) is ~~applied~~ prohibited or delayed by applicable local law from being repatriated to the United States (in the case of the foregoing clauses (x) and (y), as reasonably determined by the Company ~~(or such Restricted Subsidiary~~in good faith which determination shall be conclusive), as the ~~case may be) within 270 days from the date~~ portion of such ~~Asset Sale either:~~ Net Available Cash so affected will not be required to be applied in compliance with clause (Aiii) ~~to prepay~~of the first paragraph of this covenant, ~~repay, redeem or purchase any Indebtedness that~~ and such amounts may be retained by ~~its terms is not subordinate to~~ the ~~Notes or any Guarantee and~~applicable Foreign Subsidiary; provided that, in the case of this clause (y), the Company shall take commercially reasonable efforts to cause the applicable Foreign Subsidiary to take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation, and if such repatriation of any of such ~~Indebtedness under~~ affected Net Available Cash can be achieved such repatriation will be promptly effected and such repatriated Net Available Cash will be applied (whether or not repatriation actually occurs) in compliance with clause (iii) of the first paragraph of this covenant. The time periods set forth in this covenant shall not start until such time as the Net Available Cash may be repatriated whether or not such repatriation actually occurs. Notwithstanding the foregoing provisions of this Section 6.04, the Company and the Restricted Subsidiaries shall not be required to apply any ~~revolving credit facility~~Net Available Cash or equivalent amount in accordance with this Section 6.04 except to the extent that the aggregate Net Available Cash from all Asset Dispositions of Collateral or equivalent amount that is not applied in accordance with this Section 6.04 exceeds $30.0 million For the purposes of Section 6.04(a)(ii), ~~effect a permanent reduction in~~ the ~~availability under such revolving credit facility; and (B) to:~~ following are deemed to be cash: (1) ~~make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or~~ Temporary Cash Investments and Cash Equivalents; (2) ~~acquire~~ the ~~Capital~~ assumption of Indebtedness of the Company (other than Disqualified Stock of ~~a Person~~ the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition; (3) Indebtedness of any Restricted Subsidiary that ~~becomes~~ is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the ~~acquisition of such Capital Stock; provided~~ extent that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash not applied within 270 days after the consummation of an Asset Sale as provided in clauses (A), (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company ~~will be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis~~ and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of ~~Notes equal~~ such Indebtedness in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon to the date of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, connection with such ~~adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased.~~ Asset Disposition; (ii4) If the aggregate principal amount of Notes tendered pursuant to such Asset 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 (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration securities received by the Company or any Restricted Subsidiary ~~in connection with any Asset Sale is~~ from the transferee that are converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company ~~stating:~~ or such Restricted Subsidiary into cash within 180 days; (i5) ~~that~~ consideration consisting of Indebtedness of the Company or any Restricted Subsidiary; (6) Additional Assets; and (7) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset ~~Sale Offer is being made~~ Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this ~~Section 4.11 and that all Notes that are timely tendered will be accepted for payment~~clause, ~~subject~~ not to ~~proration if the~~ exceed an aggregate amount ~~of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant~~ at any time outstanding equal to the ~~Asset Sale Offer;~~ greater of $50.0 million and 1.25% of Consolidated Tangible Assets (~~ii)~~ with the ~~Asset Sale Offer Amount, the amount~~ Fair Market Value of ~~Excess Proceeds that are available to be applied to purchase tendered Notes, and~~ each item of Designated Noncash Consideration being measured on the date ~~Notes are to be purchased pursuant to the Asset Sale Offer~~ a legally binding commitment for such disposition (~~the "Asset Sale Purchase Date")~~or, which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted if later, for ~~payment will continue to accrue interest; (iv) that, unless the Company defaults in~~ the payment of ~~the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant~~ such item) was entered into and without giving effect to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified subsequent changes in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11value). (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: First Lien Credit Agreement (Victoria's Secret & Co.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) ~~the~~ The Company or such Restricted Subsidiary receives consideration at the time of such Asset ~~Sale~~ Disposition at least equal to the fair market ~~value~~ value, as determined in good faith by the Company (including as to the value of all non-cash consideration) ), of the shares and assets subject to such Asset ~~Sale (which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions) involving in excess of $1,000,000)~~ Disposition and at least 75% of the consideration ~~received therefor~~ thereof received, together with all other Asset Dispositions since the Issue Date (on a cumulative basis), by the Company or such Restricted ~~Subsidiary~~ Subsidiary, as the case may be, is in the form of cash or Cash ~~Equivalents~~ Equivalents; provided, however, that in the case of an Asset Disposition (x) involving the disposition of non-core assets (as determined by the Company in its good faith judgment) acquired as part of any acquisition after the Issue Date or (y) for aggregate consideration of less than $100.0 million, only 50% of the consideration therefor must be in the form of cash or Cash Equivalents; provided further that: (A) any promissory 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) shall be deemed to be cash solely for purposes of this Section 10.16(a)(i), and (B) 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 Section 10.16(a)(i)(B) that is at that time outstanding, not to exceed the greater of (x) $150.0 million and ~~is received~~ (y) 4.0% of Consolidated Tangible Assets at the time of receipt of such ~~sale and~~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 solely for purposes of this Section 10.16(a)(i); (ii) an amount equal to 100% of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be~~) within 270 days from the date of such Asset Sale either~~), at its option except as described below: (A) (x) to the extent the Company elects (or is required by the terms of any Senior Indebtedness or any Indebtedness of any non-Guarantor Subsidiary), to prepay, ~~repay, redeem~~ repay or purchase Senior Indebtedness or Indebtedness of any ~~Indebtedness that by its terms is not subordinate~~ non-Guarantor Subsidiary of the Company within 365 days of such Asset Disposition, (y) at the Company’s election to the ~~Notes~~ investment by the Company or ~~any Guarantee and,~~ such Restricted Subsidiary in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and (B) to: (1) make an investment in properties or assets ~~that~~ to replace the ~~properties or~~ assets that were the subject of such Asset ~~Sale or in properties~~ Disposition or assets that ~~will be used~~ (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, or (z) a ~~Related Business or~~combination of the foregoing purposes within such 365-day period; (2B) ~~acquire~~ to make a pro rata offer to purchase Notes at par (and, to the ~~Capital Stock~~ extent required by the instrument governing such Indebtedness, any other Senior Indebtedness or Indebtedness of a ~~Person that becomes a Restricted~~ non-Guarantor Subsidiary ~~as a result of~~ designated by the ~~acquisition of such Capital Stock; provided that such Person is~~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 ~~it becomes a Restricted Subsidiary~~during the 365-day period set forth in Section 10.16(a)(ii)(A) or within 10 Business Days after such period, ~~engaged in a Related Business; or~~and (C) ~~a combination~~ to the extent of ~~prepayment and investment permitted by clauses (A~~the balance of such Net Available Cash after application in accordance with Sections 10.16(a)(ii)(A) and 10.16(a)(ii)(B), for general corporate purposes otherwise permitted under this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to Sections 10.16(a)(ii)(A) and 10.16(a)(ii)(B), the Company or such Subsidiary shall retire such Indebtedness and cause the related loan commitment (B)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 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) ~~Any Net Available Cash not applied within 270 days after~~ In the ~~consummation~~ event of an Asset ~~Sale as provided~~ Disposition that results in ~~clauses~~ an offer to purchase the Notes (Aand other Senior Indebtedness or Indebtedness of any non-Guarantor Subsidiary) pursuant to Section 10.16(a)(ii)(B)~~, (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million~~, the Company ~~will be required~~ or such Restricted Subsidiary shall purchase Notes tendered pursuant to ~~make~~ an offer ~~to an Holders~~ by the Company for the Notes (~~an "Asset Sale Offer")~~and, to ~~purchase~~the extent required, ~~on a pro rata basis the principal amount~~ other Senior Indebtedness of ~~Notes equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million~~any non-Guarantor Subsidiary) ~~(the "Asset Sale Offer Amount"),~~ at a purchase price ~~in cash in an amount equal to~~ of 100% of ~~the~~ their principal amount ~~thereof~~ (without premium) plus accrued ~~and~~ but unpaid interest ~~and Liquidated Damages thereon to~~ (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 ~~date~~ terms of ~~purchase (subject to the right~~ such Senior Indebtedness or Indebtedness of ~~each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date)~~any non-Guarantor Subsidiary, as applicable) in accordance with the procedures (including prorating in the event of oversubscription) set forth in this ~~Indenture~~Indenture which shall include, ~~and in accordance with~~ among other things, that the offer shall remain open for 20 Business Days following ~~standards: (i)~~ its commencement. If the aggregate ~~principal amount~~ purchase price of Notes ~~surrendered by Holders thereof exceeds~~ (and, to the ~~amount~~ extent required, any other Senior Indebtedness or Indebtedness of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (iiany non-Guarantor Subsidiary) ~~If the aggregate principal amount of Notes~~ tendered pursuant to such ~~Asset Sale Offer~~ offer is less than the ~~Excess Proceeds~~Net Available Cash allotted to the purchase thereof, the Company ~~may use~~ 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 ~~remaining Excess Proceeds following~~ non-Guarantor Subsidiary) pursuant to this Section 10.16 if the ~~completion~~ 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 ~~Asset Sale Offer for general corporate purposes (subject~~ 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 ~~other provisions of this Indenture)~~Company and purchases all Notes validly tendered and not withdrawn under such offer. Upon completion of ~~an Asset Sale Offer~~any such offer by the Company for Notes, the amount of ~~Excess Proceeds then required~~ Net Available Cash related to ~~be otherwise applied in accordance with this covenant~~ such Asset Disposition shall be reset to zero, ~~subject~~ and during the pendency of an offer by the Company for Notes being effected in advance of being required to ~~any~~ 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 ~~Sale~~Dispositions. Pending the final application of any Net Available Cash pursuant to Section 10.16(a)(ii), the Company or the applicable Restricted Subsidiary may apply such Net Available Cash temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Available Cash in Cash Equivalents or Investment Grade Securities. (c) In The Company shall comply, to the ~~event~~ extent applicable, with the requirements of ~~the transfer of substantially all (but not all~~Section 14(e) of the ~~property~~ Exchange Act and ~~assets~~ any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 10.16. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 10.16, the Company shall comply with the applicable securities laws and ~~its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation~~ regulations and shall not be deemed to have ~~sold the properties and assets of the Company and~~ breached its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to obligations under this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii10.16(c) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple by virtue thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Indenture (Terex Corp)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company ~~shall~~ will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ 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 ~~Sale (which~~ Disposition, as such fair market value shall be determined in good faith by the ~~Board~~ Company, which determination shall be conclusive (including as to the value of ~~Directors for~~ all noncash consideration), (ii) in the case of any ~~transaction~~ Asset Disposition (or series of ~~transactions~~related Asset Dispositions) ~~involving in excess~~ having a fair market value of $~~1,000,000) and~~ 25.0 million or more, at least 7575.0% of the consideration 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 ~~therefor~~ by the Company or such Restricted Subsidiary is in the form of ~~cash or Cash Equivalents and is received at the time of such sale~~ cash, and (iiiii) an amount equal to 100% of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the Company (or ~~such~~ any Restricted Subsidiary, as the case may be) in accordance with paragraph (c) below. (b) [Reserved]. (c) To the extent that such Net Available Cash is from an Asset Disposition, an amount equal to 100% of such Net Available Cash is applied by the Company (or any Restricted Subsidiary, as the case may be) as follows: (A) first, either (x) to the extent that the Company elects (or is required by the terms of any Indebtedness of the Company or any Restricted Subsidiary), to prepay, repay or purchase any such Indebtedness (other than Subordinated Obligations) or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness (other than Subordinated Obligations) (in each case other than Indebtedness owed to the Company or a Restricted Subsidiary) within ~~270~~ 450 days ~~from~~ after the later of the date of such Asset ~~Sale either:~~Disposition and the date of receipt of such Net Available Cash, or (y) to the extent that the Company or such Restricted Subsidiary elects, to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Company or another Restricted Subsidiary) within 450 days from the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash, or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 450 days to complete, the period of time necessary to complete such project; provided that to the extent any Additional Assets constitute After Acquired Property, the Company shall, and shall cause any applicable Subsidiary Guarantor to, comply with Section 1503; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above (such balance, the “Excess Proceeds”), to ~~prepay~~make an offer to purchase Notes and (to the extent the Company or such Restricted Subsidiary elects, ~~repay~~or is required by the terms thereof) to purchase, redeem or ~~purchase~~ repay any Indebtedness ~~that by its terms is not subordinate~~ under the Senior Term Facility, any Additional Obligations of the Company or a Restricted Subsidiary having Pari Passu Lien Priority, or any other Indebtedness having Pari Passu Lien Priority, pursuant and subject to the ~~Notes or any Guarantee and, in~~ conditions of this Indenture and the ~~case of any~~ agreements governing such ~~Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility~~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) ~~to:~~above, to fund (to the extent consistent with any other applicable provision of this Indenture) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (B) above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; provided, further, that the Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (A)(y) above with respect to such Asset Disposition. Notwithstanding the foregoing provisions of this Section 411(c), the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 411(c) except to the extent that the aggregate Net Available Cash from all Asset Dispositions subject to this Section 411(c) or equivalent amount that is not applied in accordance with this paragraph (c) exceeds $75.0 million. If the aggregate principal amount of Notes and/or other Indebtedness of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to clause (B) above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding principal amount of such Notes and the denominator of which is the sum of the outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. (d) For the purposes of clause (ii) of paragraph (a) above, the following are deemed to be cash: (1) ~~make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or~~ Temporary Cash Investments and Cash Equivalents, (2) ~~acquire~~ the ~~Capital~~ assumption of Indebtedness of the Company (other than Disqualified Stock of ~~a Person~~ the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (3) Indebtedness of any Restricted Subsidiary that ~~becomes~~ is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the ~~acquisition~~ extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such ~~Capital Stock; provided~~ Indebtedness in connection with such Asset Disposition, (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such ~~Person is~~Restricted Subsidiary into cash within 180 days, (5) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary, (6) Additional Assets and (7) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause, not to exceed an aggregate amount at any time outstanding equal to the greater of $125.0 million and 2.5% of Consolidated Tangible Assets (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time ~~it becomes a Restricted Subsidiary, engaged~~ received and without giving effect to subsequent changes in ~~a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B~~value). (be) ~~Any Net Available Cash not applied within 270 days after~~ In the ~~consummation~~ event of an Asset ~~Sale as provided in clauses (A~~Disposition that requires the purchase of Notes pursuant to Section 411(c)(B)~~, (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million~~, the Company will be required to purchase Notes tendered pursuant to an offer by the Company for the Notes (the “Offer”) at a purchase price of 100% of their principal amount plus accrued and unpaid interest to the date of purchase in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture. If the aggregate purchase price of the Notes tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of Notes, the remaining Net Available Cash will be available to the Company for use in accordance with Section 411(c)(B) (to repay other Indebtedness of the Company or a Restricted Subsidiary) or Section 411(c)(C). The Company shall not be required to make an ~~offer~~ Offer for Notes pursuant to ~~an Holders~~ this Section 411 if the Net Available Cash available therefor (~~an "Asset Sale Offer"~~after application of the proceeds as provided in Section 411(c)(A), as applicable) is less than $75.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an Offer is required with respect to ~~purchase, on a pro rata basis~~ the Net Available Cash from any subsequent Asset Disposition). No Note will be repurchased in part if less than the Minimum Denomination in original principal amount of ~~Notes equal in amount~~ such Note would be left outstanding. (f) [Reserved]. (g) The Company shall, not later than 45 days after the Company becomes obligated to make an Offer pursuant to this Section 411, send a notice to each Holder with a copy to the ~~Excess Proceeds~~ Trustee stating: (1) that an Asset Disposition that requires the purchase of a portion of the Notes has occurred and ~~not just~~ that such Holder has the ~~amount thereof that exceeds $5.0 million~~right (subject to the prorating described below) (to require the ~~"Asset Sale Offer Amount"),~~ Company to purchase a portion of such Holder’s Notes at a purchase price in cash ~~in an amount~~ equal to 100% of the principal amount ~~thereof~~ thereof, plus accrued and unpaid ~~interest and Liquidated Damages thereon~~ interest, if any, to the date of purchase (subject to provisions in the ~~right~~ applicable Indenture regarding the preservation of ~~each~~ payment of interest rights); (2) the repurchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is sent); (3) the instructions determined by the Company, consistent with this Section 411, that a Holder must follow in order to have its Notes purchased; and (4) the amount of ~~record on~~ the ~~relevant Record Date to receive interest due on~~ Offer. If, upon the ~~relevant Interest Payment Date)~~expiration of the period for which the Offer remains open, ~~in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If~~ the aggregate principal amount of Notes surrendered by Holders ~~thereof~~ exceeds the amount of ~~Excess Proceeds~~the Offer, the ~~Trustee~~ Company shall select the Notes to be purchased on a pro rata ~~basis, based on the principal amount of Notes tendered,~~ basis (with such adjustments as may be deemed appropriate by the ~~Trustee,~~ Company so that only Notes in denominations of ~~$1,000~~ the Minimum Denomination or integral multiples of $1,000 in excess thereof shall be purchased). (iih) If The Company will comply, to the ~~aggregate principal amount~~ extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes ~~tendered~~ pursuant to ~~such Asset Sale Offer is less than~~ this Section 411. To the ~~Excess Proceeds~~extent that the provisions of any securities laws or regulations conflict with provisions of this Section 411, the Company ~~may use any remaining Excess Proceeds following~~ will comply with the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but applicable securities laws and regulations and will not ~~all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall~~ be deemed to have ~~sold the properties and assets of the Company and~~ breached its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to obligations under this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple 411 by virtue thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Indenture (Hd Supply, Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company ~~shall~~ will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ Disposition at least equal to the fair market value (as of the date on which a legally binding commitment for such Asset Disposition was entered into) of the shares and assets subject to such Asset Disposition, as such fair market value may be determined in good faith by the Company, whose determination shall be conclusive (including as to the value of all non-cash consideration); (ii) in the case of ~~the shares and assets subject to such~~ any Asset ~~Sale~~ Disposition (~~which~~ or series of related Asset Dispositions) having a fair market value ~~shall be~~ (as determined in good faith by the ~~Board~~ Company, whose determination shall be conclusive, as of ~~Directors~~ the date on which a legally binding commitment for ~~any transaction~~ such Asset Disposition was entered into) of $75.0 million or more, at least 75.0% of the consideration therefor (excluding, in the case of an Asset Disposition (or series of ~~transactions~~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) ~~involving in excess of $1,000,000) and at least 75% of the consideration~~ received ~~therefor~~ by the Company or such Restricted Subsidiary for such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis) received by the Company or any Restricted Subsidiary, is in the form of ~~cash or Cash Equivalents and is received at the time of such sale~~ cash; and (iiiii) an amount equal to ~~100~~100.0% of the Net Available Cash from such Asset ~~Sale~~ Disposition (such amount, the “Net Available Cash Amount”) is applied by the Company (or ~~such~~ any Restricted Subsidiary, as the case may be) as follows: (A) first, either (x) to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Credit Facility Indebtedness, any Senior Indebtedness of the Company or any Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness or Obligations in respect thereof or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness or Obligations in respect thereof (in each case other than Indebtedness owed to the Company or a Restricted Subsidiary) within ~~270~~ 540 days ~~from~~ after the later of the date of such Asset ~~Sale either:~~Disposition and the date of receipt of such Net Available Cash, or (y) to the extent the Company or such Restricted Subsidiary elects, to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Company or another Restricted Subsidiary) within 540 days after the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash, or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 540 days to complete the period of time necessary to complete such project; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above (such balance, the “Excess Proceeds”), to ~~prepay~~make an offer to purchase the Notes and (to the extent the Company or such Restricted Subsidiary elects, ~~repay~~or is required by the terms thereof) to make an offer to purchase, redeem or ~~purchase~~ repay and/or to purchase, redeem or repay any other Senior Indebtedness ~~that by its terms is not subordinate~~ of the Company or a Restricted Subsidiary, pursuant and subject to the ~~Notes~~ conditions of Section 411(b) and Section 411(c) and the agreements or instruments governing such other Senior Indebtedness; and (C) third, to the extent of the balance of such Net Available Cash Amount or equivalent amount after application in accordance with clauses (A) and (B) above (including, an amount equal to the amount of any purchase, redemption or repayment contemplated by clause (B) above that is declined or not accepted by any applicable holder) (the amount of such balance, “Declined Excess Proceeds”), to fund (to the extent consistent with any other applicable provision of this Indenture) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations or the making of other Restricted Payments); provided, however, that (1) in connection with any prepayment, repayment, purchase or redemption of Indebtedness pursuant to clause (A)(x) or (B) above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; and (2) the Company (or any ~~Guarantee and~~Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (A)(y) above with respect to such Asset Disposition. Notwithstanding the foregoing provision in Section 411(a)(iii), to the extent that repatriating any or all of the Net Available Cash from any Asset Disposition by a Foreign Subsidiary (x) would result in material adverse tax consequences to Topco or one of its Subsidiaries or (y) (1) could reasonably be expected to be prohibited or delayed by applicable local law, (2) is restricted by applicable organizational documents or any agreement or (3) subject to other organizational or administrative impediments from being repatriated to the United States (in the case of the foregoing clauses (x) and (y), as determined in good faith by the Company, which determination shall be conclusive), the portion of such Net Available Cash so affected will not be required to be applied in compliance with Section 411(a)(iii), and such amounts may be retained by the applicable Foreign Subsidiary; provided that, in the case of clause (y), the Company shall take commercially reasonable efforts to cause the applicable Foreign Subsidiary to take all actions reasonably required by the applicable local law, the applicable organizational documents or agreements, the applicable organizational impediments or other impediment to permit such repatriation, and if such repatriation of any of such affected Net Available Cash can be achieved such repatriation will be promptly effected and such repatriated Net Available Cash will be applied (whether or not repatriation actually occurs) in compliance with Section 411(a)(iii). The time periods set forth in this Section 411 shall not start until such time as the Net Available Cash may be repatriated whether or not such repatriation actually occurs. Notwithstanding the foregoing provisions of this Section 411, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 411 except to the extent that the aggregate Net Available Cash from all Asset Dispositions or equivalent amount that is not applied in accordance with this Section 411 exceeds $50.0 million, in which case the Company and the Restricted Subsidiaries shall apply all such Net Available Cash or equivalent amount from such Asset Dispositions in excess of this $50.0 million threshold in accordance with this Section 411. If the aggregate principal amount of Notes and/or other Indebtedness ~~under any revolving credit facility~~of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, ~~effect a permanent reduction~~ redemption or repayment) in ~~the availability under such revolving credit facility; and~~ connection with an offer pursuant to clause (B) ~~to:~~ above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding principal amount of such Notes and the denominator of which is the sum of the outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. For the purposes of Section 411(a)(ii), the following are deemed to be cash: (1) ~~make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or~~ Temporary Cash Investments and Cash Equivalents; (2) ~~acquire~~ the ~~Capital~~ assumption of Indebtedness of the Company (other than Disqualified Stock of ~~a Person~~ the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition; (3) Indebtedness of any Restricted Subsidiary that ~~becomes~~ is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the ~~acquisition~~ extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such ~~Capital Stock~~Indebtedness in connection with such Asset Disposition; ~~provided~~ (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such ~~Person is, at~~ Restricted Subsidiary into cash within 180 days; (5) consideration consisting of Indebtedness of the ~~time it becomes a~~ Company or any Restricted Subsidiary~~, engaged in a Related Business~~; or (C6) ~~a combination of prepayment and investment permitted by clauses (A)~~ Additional Assets; and (B7) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate fair market value (as determined in good faith by the Company, which determination shall be conclusive), taken together with all other Designated Noncash Consideration received pursuant to this clause (7), not to exceed an aggregate amount at any time outstanding equal to the greater of $110.0 million and 30.00% of Four Quarter Consolidated EBITDA (with the fair market value (as determined in good faith by the Company, which determination shall be conclusive) of each item of Designated Noncash Consideration being measured on the date a legally binding commitment for such Asset Disposition (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in value). (b) ~~Any Net Available Cash not applied within 270 days after~~ In the ~~consummation~~ event of an Asset ~~Sale as provided in clauses (A~~Disposition that requires the purchase of Notes pursuant to Section 411(a)(iii)(B)~~, (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million~~, the Company will be required to purchase Notes tendered pursuant to an offer by the Company for the Notes (the “Offer”) at a purchase price of 100.0% of their principal amount plus accrued and unpaid interest to but not including the date of purchase in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 411(c). If the aggregate purchase price of the Notes tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of Notes, the remaining Net Available Cash will be available to the Company and the Restricted Subsidiaries for use in accordance with Section 411(a)(iii)(B) (to repay other Indebtedness of the Company or a Restricted Subsidiary) or Section 411(a)(iii)(C). The Company shall not be required to make an ~~offer~~ Offer for Notes pursuant to this Section 411 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 411(a)(iii)(A)) is less than $50.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an ~~Holders (an "~~Offer is required with respect to the Net Available Cash from any subsequent Asset ~~Sale Offer"~~Disposition)~~, to purchase, on a pro rata basis the~~ . No Note will be repurchased in part if less than $2,000 in original principal amount of ~~Notes equal in amount~~ such Note would be left outstanding. The provisions under this Indenture relating to the ~~Excess Proceeds~~ Company’s obligation to make an Offer for Notes pursuant to this Section 411 may be waived or modified with the written consent of the Holders of a majority in principal amount of the Notes. (c) The Company shall, not later than 45 days after the Company becomes obligated to make an Offer pursuant to this Section 411, send a notice to each Holder with a copy to the Trustee stating: (1) that an Asset Disposition that requires the purchase of a portion of the Notes has occurred and ~~not just~~ that such Holder has the ~~amount thereof that exceeds $5.0 million~~right (subject to the prorating described below) (to require the ~~"Asset Sale Offer Amount"),~~ Company to purchase a portion of such Holder’s Notes at a purchase price in cash equal to 100.0% of the principal amount thereof, plus accrued and unpaid interest, if any, to but not including the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant Interest Payment Date falling prior to or on the purchase date); (2) the repurchase date (which shall be no earlier than 10 days nor later than 60 days from the date such notice is sent, except that such notice may be delivered more than 60 days prior to the purchase date if the purchase date is delayed as provided in clause (5) of this Section 411(c)); (3) the instructions determined by the Company, consistent with this Section 411, that a Holder must follow in order to have its Notes purchased; (4) the amount of the Offer, which amount may be contingent upon the Net Available Cash remaining following the application of Net Available Cash pursuant to Section 411(a)(iii)(A); and (5) if such notice is sent prior to the date the Net Available Cash attributable to such Asset Disposition is received, that such offer is conditioned upon receipt of such Net Available Cash and that the purchase date may, in the Company’s discretion, be delayed until such time as the Net Available Cash is received. If, upon the expiration of the period for which the Offer remains open, the aggregate principal amount of Notes surrendered by Holders exceeds the amount of the Offer, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000 or integral multiples of $1,000 in excess thereof shall be purchased). (d) If Holders of not less than 90.0% in aggregate principal amount of the outstanding Notes of any series validly tender and do not withdraw such Notes in an ~~amount~~ Offer and the Company purchases all of the Notes of such series validly tendered and not withdrawn by such Holders, the Company will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to such Offer, to redeem all Notes of such series that remain outstanding following such purchase at a price in cash equal to ~~100~~100.0% of the principal amount thereof plus accrued and unpaid interest ~~and Liquidated Damages thereon~~ to but excluding the date of ~~purchase~~ such redemption (subject to the right of ~~each Holder~~ Holders of record on the relevant ~~Record Date~~ record date to receive interest due on the relevant Interest Payment Date falling prior to or on the Redemption Date), in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (iie) ~~If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds~~The Company will comply, ~~the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject~~ to the ~~other provisions~~ extent applicable, with the requirements of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not allSection 14(e) of the ~~property~~ Exchange Act and ~~assets~~ any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 411. To the ~~Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below,~~ extent that the ~~successor corporation shall be deemed to have sold the properties and assets~~ provisions of ~~the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply~~ any securities laws or regulations conflict with the provisions of this ~~covenant with respect to such deemed sale as if it were an Asset Sale. In addition~~Section 411, the ~~fair market value of such properties~~ Company will comply with the applicable securities laws and ~~assets of the Company or its Subsidiaries deemed to be sold shall~~ regulations and will not be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to have breached its obligations under this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple 411 by virtue thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Indenture (Nci Building Systems Inc)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset ~~Sale unless:~~ Disposition unless (i) the Company or such Restricted ~~Subsidiary~~ Subsidiary, as the case may be, receives consideration at the time of such Asset ~~Sale~~ Disposition at least equal to the ~~fair market value~~ Fair Market Value (including as to the value of all non-cash consideration) ), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset ~~Sale~~ Disposition and (~~which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions~~ii) ~~involving in excess of $1,000,000) and~~ at least 75% of the consideration thereof received ~~therefor~~ by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents and is received at the time of such sale and (ii) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied by the Company (or such Restricted Subsidiary, as the case may be~~) within 270 days~~ , is in the form of cash or cash equivalents. In the event and to the extent that the Net Available Cash received by the Company and its Restricted Subsidiaries from one or more Asset Dispositions occurring on or after May 17, 1999 in any period of 12 consecutive months exceeds 10% of Adjusted Consolidated Net Tangible Assets (determined as of the date closest to the commencement of such ~~Asset Sale either~~12-month period for which a consolidated balance sheet has been filed with the Commission or provided to the Trustee pursuant to Section 7.04(a)), then the Company shall or shall cause the relevant Restricted Subsidiary to: (A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary (in each case other than Indebtedness ~~that by its terms is not subordinate~~ owed to the ~~Notes~~ Company or ~~any Guarantee and~~an Affiliate of the Company) within 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; (B) second, to the extent of the balance of such Net Available Cash after application, if any, in accordance with clause (A), to the ~~case~~ extent the Company elects, to acquire Additional Assets within 360 days from the later of ~~any~~ the date of such ~~Indebtedness under any revolving credit facility, effect a permanent reduction in~~ Asset Disposition or the ~~availability under~~ receipt of such ~~revolving credit facility~~Net Available Cash; and (BC) ~~to: (1) make an investment in properties or assets that replace~~ third, to the ~~properties or assets that were~~ extent of the ~~subject~~ balance of such ~~Asset Sale or~~ Net Available Cash after application, if any, in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by accordance with clauses (A) and (B) (the “Offer Excess Proceeds”), and subject to paragraph (b) below, to make an offer to the holders of the Notes (and to holders of other Senior Indebtedness designated by the Company) to purchase Notes (and such other Senior Indebtedness) pursuant to and subject to the conditions set forth in paragraph (b) below; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph, the Company and the Restricted Subsidiaries shall be entitled, but shall not be required, to apply any Net Available Cash in accor- dance with this paragraph except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this paragraph exceeds US$10 million. Pending application of Net Available Cash pursuant to this covenant, such Net Available Cash shall be invested in Permitted Investments. For the purposes of this covenant, the following are deemed to be cash or cash equivalents: (x) the assumption of Indebtedness (other than Subordinated Obligations) of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (y) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash. (b) ~~Any Net Available Cash not applied within 270 days after~~ In the ~~consummation~~ event of an Asset ~~Sale as provided in clauses~~ Disposition that requires an offer to purchase the Notes (~~A),~~ and other Senior Indebtedness) pursuant to clause (Ba)(C) ~~or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million~~above, the Company will be required to ~~make an offer to an Holders~~ purchase (an "“Asset Sale Offer"”), ~~to purchase~~from all Holders issued under this Indenture, ~~on a pro rata basis the~~ that aggregate principal amount of Notes ~~equal in amount to the~~ as can be purchased by application of such Offer Excess Proceeds ~~(and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"),~~ at a ~~purchase~~ price in cash ~~in an amount~~ equal to 100% of the principal amount thereof ~~plus~~ plus, in each case, accrued and unpaid ~~interest and Liquidated Damages thereon~~ interest, if any, to the ~~date~~ purchase date. Each Asset Sale Offer shall remain open for a period of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with 20 business days or such ~~adjustments~~ longer period as may be ~~deemed appropriate~~ required by law. To the ~~Trustee, so~~ extent that ~~only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If~~ the aggregate ~~principal amount~~ purchase price for the applicable issue of Notes tendered pursuant to ~~such~~ an Asset Sale Offer is less than the Offer Excess Proceeds, the Company or any Restricted Subsidiary may use ~~any remaining Excess Proceeds following the completion of the Asset Sale Offer~~ such deficiency for general corporate ~~purposes (subject~~ purposes. If the aggregate purchase price for the Notes validly tendered and not withdrawn by holders thereof exceeds the amount of Notes which can be purchased with the Offer Excess Proceeds, Notes to ~~the other provisions of this Indenture)~~be purchased will be selected on a pro rata basis. Upon completion of an such Asset Sale Offer, the amount of Offer Excess Proceeds ~~then required to be otherwise applied in accordance with this covenant~~ shall be reset to zero~~, subject to any subsequent~~ . Notice of an Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation Sale Offer shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received mailed by the Company (or ~~any Subsidiary in connection with any~~ upon the Company’s request, at the Company’s expense, shall be mailed by the Trustee), not more than 20 Business Days after the obligation to make such Asset Sale ~~is converted into or sold or otherwise disposed~~ Offer arises to the Holders of Notes at their last registered addresses with a copy to the Trustee and the Paying Agent. The Asset Sale Offer shall remain open from the time of mailing for ~~cash~~at least 20 Business Days and until 5:00 p.m., ~~then such conversion or disposition~~ New York City time, on the date fixed for Purchase of Notes validly tendered and not withdrawn, which date shall be ~~deemed to constitute an~~ not later than the 30th Business Day following the mailing of such Asset Sale ~~hereunder and~~ Offer (the ~~Net Available Cash thereof~~ “Asset Sale Offer Purchase Date”). The notice, which shall ~~be applied in accordance with this covenant. (e) Within 30 calendar days after~~ govern the ~~date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense~~ terms of the ~~Company~~Asset Sale Offer, shall ~~send to each Holder~~ include such disclosures as are required by ~~first-class mail, postage prepaid, a notice prepared by the Company stating~~law and shall state: (i) that an the Asset Sale Offer is being made pursuant to this Section ~~4.11~~ 10.15 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale ~~Offer~~Offer shall remain open for a period of 20 Business Days or such longer period as may be required by law; (ii) the ~~Asset Sale Offer Amount,~~ purchase price (including the amount of ~~Excess Proceeds that are available to be applied to purchase tendered Notes~~accrued interest, ~~and the date Notes are to be purchased pursuant to~~ if any) for each Note, the Asset Sale Offer (Purchase Date and the "date on which the Asset Sale ~~Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed~~Offer expires; (iii) that any ~~Notes or portions thereof~~ Note not tendered ~~or accepted~~ for payment will continue to accrue ~~interest~~interest in accordance with the terms thereof; (iv) that, unless the Company ~~defaults~~ shall default in the payment of the ~~Asset Sale Offer Amount with respect thereto~~purchase price, ~~all Notes or portions thereof~~ any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest ~~from and~~ after the Asset Sale Offer Purchase Date; (v) that ~~any Holder~~ Holders electing to have ~~any~~ Notes ~~or portions thereof~~ purchased pursuant to ~~the~~ an Asset Sale Offer will be required to surrender ~~such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such~~ their Notes ~~completed,~~ to the Paying Agent at the address specified in the notice prior to ~~the close of business~~ 5:00 p.m., New York City time, on ~~the third Business Day preceding~~ the Asset Sale Offer Purchase ~~Date~~Date and must complete any form letter of transmittal proposed by the Company and acceptable to the Trustee and the Paying Agent; (vi) that ~~any Holder shall~~ Holders of Notes will be entitled to withdraw ~~such~~ their election if the Paying Agent receives, not later than ~~the close of business~~ 5:00 p.m., New York City time, on ~~the second Business Day preceding~~ the Asset Sale Offer Purchase Date, a facsimile transmission or ~~letter,~~ letter setting forth the name of the ~~Holder~~Holders, the principal amount of Notes the Holders delivered for purchase, the Note certificate number (if any) and a statement that such Holder is withdrawing ~~such Holder's~~ his election to have such Notes ~~or portions thereof purchased pursuant to the Asset Sale Offer~~pur- chased; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes Holders whose ~~Certificated~~ Notes are ~~being~~ purchased only in part will be issued ~~new Certificated~~ Notes of like tenor equal in principal amount to the unpurchased portion of the ~~Certificated Note or~~ Notes surrendered~~, which unpurchased portion will be equal~~ ; (viii) the instructions that Holders must follow in ~~principal amount~~ order to ~~$1,000 or an integral multiple thereof,~~tender their Notes; and (ix) ~~that~~ information concerning the ~~Trustee will return~~ business of the Company, the most recent annual and quarterly reports of the Company filed with the SEC pursuant to the Exchange Act (or, if the Company is not required to file any such reports with the SEC, the comparable reports prepared pursuant to Section 7.04(a)) and such other information concerning the circumstances and relevant facts regarding such Asset Sale and Asset Sale Offer as would, in the good faith judgment of the Company, be material to a Holder of ~~a Global Note that is being purchased~~ Notes in ~~part,~~ connection with the decision of such ~~Global Note with a notation on Schedule A thereof adjusting the principal amount thereof~~ Holder as to ~~be equal~~ whether or not it should tender Notes pursuant to the ~~unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f)~~ Asset Sale Offer. On the Asset Sale ~~Payment~~ Offer Purchase Date, the Company ~~shall~~ will (i) accept for payment ~~any~~ Notes or portions thereof ~~properly~~ tendered ~~and selected for purchase~~ pursuant to the Asset Sale ~~Offer and Section 4.11(e) hereof~~Offer, (ii) ~~irrevocably~~ deposit with the Paying ~~Agent, by 10:00 a.m., New York City time, on such date~~Agent money, in immediately available funds, ~~an amount equal~~ sufficient to pay the ~~Asset Sale Offer Amount in respect~~ purchase price of all Notes or portions thereof so ~~accepted;~~ tendered and accepted and (iii) ~~deliver, or cause to be delivered,~~ deliver to the Trustee the Notes so accepted together with an Officers' ’ Certificate ~~listing~~ setting forth the Notes or portions thereof tendered to ~~the Company~~ and accepted for ~~payment~~payment by the Company. ~~Subject~~ The Paying Agent will promptly mail or deliver to the ~~provisions~~ Holders of ~~Section 4.01~~Notes so accepted payment in an amount equal to the purchase price, and the ~~Paying Agent~~ Trustee shall promptly ~~send by first class mail, postage prepaid,~~ authenticate and mail or deliver to ~~each Holder or portions thereof~~ such Holders a new Note of like tenor equal in principal amount to any unpurchased portion of the Note surrendered. Any Notes not so accepted ~~for payment~~ shall be promptly mailed or delivered by the ~~Asset Sale Offer Amount for such Notes or portions~~ Company to the Holder thereof. The Company ~~shall~~ will publicly announce the results of the Asset Sale Offer ~~on or as soon as practicable after~~ not later than the first Business Day following the Asset Sale Offer Purchase Date~~. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent~~.

Appears in 1 contract

Sources: Indenture (Alestra)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company ~~shall~~ will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ 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 ~~Sale (which~~ Disposition, as such fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) may be determined (and shall be ~~determined~~ determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $100.0 million) in good faith by the ~~Board~~ Company, whose determination shall be conclusive (including as to the value of ~~Directors for~~ all noncash consideration); (ii) in the case of any ~~transaction~~ Asset Disposition (or series of ~~transactions~~related Asset Dispositions) ~~involving in excess~~ having a fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) of $~~1,000,000) and~~ 100.0 million or more, at least 7575.0% of the consideration (excluding, in the case of each 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) for such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis) received ~~therefor~~ by the Company or such Restricted Subsidiary is in the form of ~~cash or Cash Equivalents and is received at the time of such sale~~ cash; and (iiiii) an amount equal to 100% (as may be adjusted pursuant to clause (3) of the proviso to this clause (iii)) of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the Company (or any Restricted Subsidiary (including any Issuer), as the case may be) as follows: (A) first, either (x) to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Credit Facility Indebtedness, any Senior Indebtedness of the Company or any Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness or Obligations in respect thereof or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness or Obligations in respect thereof (in each case other than Indebtedness owed to the Company or a Restricted Subsidiary) within 450 days after the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash, or (y) to the extent the Company or such Restricted Subsidiary elects, to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Company or another Restricted Subsidiary) within 450 days from the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 450 days to complete, the period of time necessary to complete such project; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above (such balance, the “Excess Proceeds”), to make an offer to purchase Notes and (to the extent the Company or such Restricted Subsidiary elects, or is required by the terms thereof) to purchase, redeem or repay any other Senior Indebtedness of the Company or a Restricted Subsidiary, pursuant and subject to Section 411(b) and Section 411(c) and the agreements governing such other Indebtedness; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) above (the amount of such balance, “Declined Excess Proceeds”), to fund (to the extent consistent with any other applicable provision of this Indenture) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations or the making of other Restricted Payments); provided, however, that (1) in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A)(x) or (B) above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; (2) the Company (or any Restricted Subsidiary, as the case may be) ~~within 270 days from~~ may elect to invest in Additional Assets prior to receiving the ~~date~~ Net Available Cash attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (A)(y) above with respect to such Asset Disposition; and (3) the foregoing percentage in this Section 411(a)(iii) shall be reduced to 50.0% if the Consolidated Total Leverage Ratio would be equal to or less than 4.00:1.00 after giving pro forma effect to any application of such Net Available Cash as set forth herein (any Net Available Cash in respect of Asset ~~Sale either:~~ Dispositions not required to be applied in accordance with this clause (Aiii) as a result of the application of this clause (3) of this proviso shall collectively constitute “Total Leverage Excess Proceeds”). Notwithstanding the foregoing provisions of this Section 411, the Company and the Restricted Subsidiaries shall not be required to ~~prepay, repay, redeem~~ apply any Net Available Cash or ~~purchase any Indebtedness~~ equivalent amount in accordance with this Section 411 except to the extent that ~~by its terms~~ the aggregate Net Available Cash from all Asset Dispositions or equivalent amount that is not ~~subordinate~~ applied in accordance with this Section 411 (excluding all Total Leverage Excess Proceeds) exceeds the greater of (a) $135.0 million and (b) 15.0% of LTM EBITDA. If the aggregate principal amount of Notes and/or other Indebtedness of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to ~~the Notes~~ purchase, redemption or ~~any Guarantee and,~~ repayment) in ~~the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and~~ connection with an offer pursuant to clause (B) ~~to:~~ above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding principal amount of such Notes and the denominator of which is the sum of the outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. For the purposes of Section 411(a)(ii), the following are deemed to be cash: (1) ~~make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or~~ Temporary Cash Investments and Cash Equivalents; (2) ~~acquire~~ the ~~Capital~~ assumption of Indebtedness of the Company (other than Disqualified Stock of ~~a Person~~ the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition; (3) Indebtedness of any Restricted Subsidiary that ~~becomes~~ is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the ~~acquisition~~ extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such ~~Capital Stock~~Indebtedness in connection with such Asset Disposition; ~~provided~~ (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such ~~Person is, at~~ Restricted Subsidiary into cash within 180 days; (5) consideration consisting of Indebtedness of the ~~time it becomes a~~ Company or any Restricted Subsidiary~~, engaged in a Related Business~~; or (C6) ~~a combination of prepayment and investment permitted by clauses (A)~~ Additional Assets; and (B7) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause, not to exceed an aggregate amount at any time outstanding equal to the greater of $170.0 million and 2.0% of LTM EBITDA (with the Fair Market Value of each item of Designated Noncash Consideration being measured on the date a legally binding commitment for such disposition (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in value). (b) ~~Any~~ In the event of an Asset Disposition that requires the purchase of Notes pursuant to Section 411(a)(iii)(B), the Issuer will be required to purchase Notes tendered pursuant to an offer by the Issuer for the Notes (the “Offer”) at a purchase price of 100.0% of their principal amount plus accrued and unpaid interest, if any, to, but excluding, the date of purchase in accordance with the procedures (including prorating in the event of oversubscription provided that the authorized denominations are maintained) set forth in Section 411(c). If the aggregate purchase price of the Notes tendered pursuant to the Offer is less than the Net Available Cash ~~not applied within 270 days after~~ allotted to the ~~consummation~~ purchase of ~~an Asset Sale as provided~~ Notes, the remaining Net Available Cash will be available to the Company and the Restricted Subsidiaries for use in ~~clauses~~ accordance with Section 411(a)(iii)(B) (~~A), (B~~to repay other Indebtedness of the Company or a Restricted Subsidiary) or ~~(C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will~~ Section 411(a)(iii)(C). The Issuer shall not be required to make an ~~offer~~ Offer for Notes pursuant to this Section 411 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 411(a)(iii)(A)) is less than the greater of (a) $135.0 million and (b) 15.0% of LTM EBITDA for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an ~~Holders (an "~~Offer is required with respect to the Net Available Cash from any subsequent Asset ~~Sale Offer"~~Disposition)~~, to purchase, on a pro rata basis the~~ . No Note will be repurchased in part if less than $2,000 in original principal amount of ~~Notes equal in amount~~ such Note would be left outstanding. (c) The Issuer shall, not later than 45 days after the Issuer becomes obligated to make an Offer pursuant to this Section 411, mail a notice to each Holder with a copy to the ~~Excess Proceeds~~ Trustee stating: (1) that an Asset Disposition that requires the purchase of a portion of the Notes has occurred and ~~not just~~ that such Holder has the ~~amount thereof that exceeds $5.0 million~~right (subject to the prorating described below) (to require the ~~"Asset Sale Offer Amount"),~~ applicable Issuer to purchase a portion of such Holder’s Notes at a purchase price in cash ~~in an amount~~ equal to ~~100~~100.0% of the principal amount ~~thereof~~ thereof, plus accrued and unpaid ~~interest and Liquidated Damages thereon to~~ interest, if any, to, but excluding, the date of purchase (subject to the right of ~~each Holder~~ Holders of record on ~~the relevant Record Date~~ a record date to receive interest ~~due~~ on the relevant Interest Payment ~~Date~~Date falling prior to or on the purchase date); (2) the repurchase date (which shall be no earlier than 10 days nor later than 60 days from the date such notice is mailed, except that such notice may be delivered more than 60 days prior to the purchase date if the purchase is delayed as provided in clause (5) of this Section 411(c)); (3) the instructions determined by the Issuer, consistent with this Section 411, that a Holder must follow in order to have its Notes purchased; (4) the amount of the Offer which amount may be contingent upon the Net Available Cash remaining following the application of Net Available Cash pursuant to Section 411(a)(iii)(A) and (5) if such notice is mailed prior to the date the Net Available Cash attributable to such Asset Disposition is received, that such offer is conditioned upon receipt of such Net Available Cash and that the purchase date may, in ~~accordance with~~ the ~~procedures set forth in this Indenture~~Issuer’s discretion, ~~and in accordance with~~ be delayed until such time as the ~~following standards: (i) If~~ Net Available Cash is received. If, upon the expiration of the period for which the Offer remains open, the aggregate principal amount of Notes surrendered by Holders ~~thereof~~ exceeds the amount of ~~Excess Proceeds~~the Offer, the ~~Trustee~~ Issuer, acting together, shall select the Notes to be purchased on a pro rata ~~basis, based on the principal amount of Notes tendered,~~ basis (with such adjustments as may be deemed appropriate by the ~~Trustee~~Issuer, acting together, so that only Notes in denominations of $~~1,000~~ 2,000 or integral multiples of $1,000 in excess thereof shall be purchased). (iid) If Pending the ~~aggregate principal~~ final application of an amount equal to the Net Proceeds pursuant to this Section 411, the holder of such Net Proceeds may apply such amount of ~~Notes tendered~~ Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility, including under the Senior Credit Facilities, or otherwise invest such amount of Net Proceeds in any manner not prohibited by this Indenture. The Issuer or any Restricted Subsidiary, as the case may be, may elect to apply an amount equal to the Net Proceeds under clause (A) above prior to receiving the Net Proceeds attributable to any given Asset Sale; provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Sale, execution of a definitive agreement for the relevant Asset Sale and consummation of the relevant Asset Sale, and deem the amount so invested to be applied pursuant to such Asset 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 (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied and in accordance with ~~this covenant shall be reset~~ clause (A) above with respect to ~~zero, subject to any subsequent~~ such Asset Sale. (ce) In To the ~~event~~ extent that any portion of the ~~transfer of substantially all (but not all)~~ Net Proceeds payable in respect of the ~~property and assets~~ Notes is denominated in a currency other than U.S. Dollars, the amount thereof payable in respect of the ~~Company and its Subsidiaries as an entirety to a Person~~ Notes shall not exceed the net amount of funds in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration U.S. Dollars that is actually received by the Company or any ~~Subsidiary in connection with any Asset Sale is converted~~ Restricted Subsidiary, upon converting such portion into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11U.S. Dollars. (f) ~~On the Asset Sale Payment Date~~Notwithstanding any other provisions of this Section 411, ~~the Company shall~~ (i) ~~accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant~~ to the extent that any of or all the Net Proceeds of any Asset Sale ~~Offer~~ are received or deemed to be received by a Foreign Subsidiary (a “Foreign Disposition”) is (x) prohibited or delayed by applicable local law, (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous organizational or administrative impediments, in each case, from being repatriated to the United States, the portion of such Net Proceeds so affected will not be required to be applied in compliance with this covenant, and ~~Section 4.11(e~~such amounts may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law, documents or agreements will not permit repatriation to the United States (the Company hereby agreeing to use reasonable efforts (as determined in the Company’s reasonable business judgment) ~~hereof~~to otherwise cause the applicable Foreign Subsidiary to within one year following the date on which the respective payment would otherwise have been required, promptly take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation), and if within one year following the date on which the respective payment would otherwise have been required, such repatriation of any of such affected Net Proceeds is permitted under the applicable local law, applicable organizational impediment or other impediment, such repatriation will be promptly effected and the amount of such repatriated Net Proceeds will be promptly (and in any event not later than five Business Days after such repatriation could be made) applied (net of additional Taxes payable or reserved against as a result thereof) (whether or not repatriation actually occurs) in compliance with this covenant and (ii) ~~irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal~~ to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to extent that the Company ~~and accepted~~ has determined in good faith that repatriation of any of or all the Net Proceeds of any Foreign Disposition would have a material adverse Tax consequence (which for ~~payment. Subject to~~ the ~~provisions~~ avoidance of ~~Section 4.01~~doubt, includes, but is not limited to, any prepayment out of such Net Proceeds whereby doing so the Company, any of its Subsidiaries, any Parent or any of their respective affiliates and/or equity owners would incur a material Tax liability), the ~~Paying Agent shall promptly send~~ Net Proceeds so affected may be retained by ~~first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment~~ the ~~Asset Sale Offer Amount for such Notes or portions thereof~~applicable Foreign Subsidiary. The ~~Company shall publicly announce the results~~ non-application of ~~the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.~~any prepayment amounts

Appears in 1 contract

Sources: Indenture (Univar Solutions Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted ~~Subsidiary~~ Subsidiaries to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale 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 Sale (which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions) involving in excess of $1,000,000) and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents and is received at the time of such sale and (ii) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied by the Company (or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); (2) in any such Asset Disposition , or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis) (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise), received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and (3) within ~~270~~ 540 days from the later of (A) the date of such Asset ~~Sale either~~Disposition and (B) the receipt of the Net Available Cash from such Asset Disposition (as may be extended by an Acceptable Commitment as set forth below, the “Proceeds Application Period”), an amount equal to the Net Available Cash is applied: (Ai) to the extent such Net Available Cash is from an Asset Disposition of Collateral, the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness): (a) to prepay, ~~repay, redeem~~ repay or purchase any Indebtedness ~~that by its terms is not subordinate~~ of a Non-Guarantor Subsidiary (in each case, other than Indebtedness owed to the ~~Notes~~ Company or any ~~Guarantee and~~Restricted Subsidiary); provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (i), the ~~case of~~ Company or such Restricted Subsidiary will retire such Indebtedness and (other than any such Indebtedness under any ~~revolving~~ asset-backed credit ~~facility~~facility (or any Refinancing Indebtedness in respect thereof) to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”), ~~effect a permanent reduction~~ will cause the related commitment (if any) to be reduced in an amount equal to the ~~availability~~ principal amount so prepaid, repaid or purchased; (ii) to reduce, prepay, repay or purchase First Lien Obligations (other than the Notes) including Indebtedness under the Credit Agreements (or any Refinancing Indebtedness in respect thereof); provided, that the Company shall equally and ratably reduce Obligations under the Notes as provided under Section 5.7 or through open-market purchases; provided further, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (ii), the Company or such ~~revolving credit facility~~Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be reduced in an amount equal to the principal amount so prepaid, repaid or purchased; or (iii) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer), to redeem Notes as provided under Section 5.7, or purchase Notes through open-market purchases or in privately negotiated transactions (provided, further, that if any such offer to purchase any Notes is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Notes); and (Bii) ~~to:~~to the extent such Net Available Cash is from an Asset Disposition of assets or property that do not constitute Collateral, the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness): (w) to reduce, prepay, repay or purchase any Indebtedness secured by a Lien on such asset, (x) to reduce, prepay, repay or purchase Pari Passu Indebtedness; provided, that the Company shall equally and ratably reduce Obligations under the Notes as provided under Section 5.7 or through open-market purchases, (y) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer), to redeem Notes as described under Section 5.7, or purchase Notes through open-market purchases or in privately negotiated transactions, or (z) to reduce, prepay, repay or purchase any Indebtedness of a Non-Guarantor (in each case, other than Indebtedness owed to the Company or any Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (ii), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be reduced in an amount equal to the principal amount so reduced, prepaid, repaid or purchased (provided further, that if any such offer to purchase any Notes is made, such amount will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Notes); and (1iii) ~~make~~ to the extent the Company or any Restricted Subsidiary elects, (i) to invest in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary equal to the amount of Net Available Cash received by the Company or another Restricted Subsidiary) or (ii) to invest in any one or more businesses, properties or assets that replace the businesses, properties or and/or assets that ~~were~~ are the subject of such Asset ~~Sale~~ Disposition (provided that any such business, properties and/or assets will be, or ~~in properties or assets that~~ will be ~~used in a Related Business or (2) acquire the Capital Stock~~ held by, one or more Restricted Subsidiaries), with any such investment made by way of a ~~Person~~ capital or other lease valued at the present value of the minimum amount of payments under such lease (as reasonably determined by the Company); provided, however, that ~~becomes~~ such Additional Assets shall be pledged as Collateral (unless such Additional Assets are Excluded Assets and are not pledged to secure any other First Lien Obligations) under the Notes Collateral Documents and in accordance with this Indenture substantially simultaneously with such investment to the extent the assets or property disposed of constituted Collateral; provided further that a ~~Restricted Subsidiary~~ binding agreement shall be treated as a ~~result~~ permitted application of Net Available Cash from the ~~acquisition~~ date of such ~~Capital Stock; provided~~ commitment with the good faith expectation that an amount equal to Net Available Cash will be applied to satisfy such ~~Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business~~commitment within 180 days of such commitment (an “Acceptable Commitment”); or (Civ) a any combination of ~~prepayment and investment permitted by clauses~~ the foregoing; provided that (A1) ~~and (B). (b) Any~~ pending the final application of the amount of any such Net Available Cash pursuant to this Section 3.5, the Company or the applicable Restricted Subsidiaries may apply such Net Available Cash temporarily to reduce Indebtedness (including under the Credit Facilities) or otherwise apply such Net Available Cash in any manner not prohibited by this Indenture, and (2) the Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied ~~within 270~~ pursuant to and in accordance with clause (ii) above with respect to such Asset Disposition. If, with respect to any Asset Disposition of Collateral, at the expiration of the Proceeds Application Period with respect to such Asset Disposition, there remains Net Available Cash in excess of the greater of $75 million and 10% of LTM EBITDA (such amount of Net Available Cash that are equal to the greater of $75 million and 10% of LTM EBITDA, “Declined Collateral Excess Proceeds,” and such amount of Net Available Cash that are in excess of the greater of $75 million and 10% of LTM EBITDA, “Collateral Excess Proceeds”), then subject to the limitations with respect to Foreign Dispositions set forth below, the Company shall make an offer (a “Collateral Asset Disposition Offer”) no later than ten business days after the ~~consummation~~ expiration of ~~an Asset Sale as provided in clauses (A)~~the Proceeds Application Period to all Holders and, ~~(B)~~ if required by the terms of any First Lien Obligations or ~~(C)~~ Pari Passu Indebtedness, to all holders of ~~paragraph (a) above will be deemed~~ such First Lien Obligations or Pari Passu Indebtedness, to ~~constitute "Excess Proceeds." When~~ purchase the ~~aggregate~~ maximum principal amount of ~~Excess Proceeds exceeds $5.0 million~~such Notes, ~~the Company will be required to make an offer to an Holders (an "Asset Sale Offer")~~First Lien Obligations and Pari Passu Indebtedness, ~~to purchase~~as appropriate, on a pro rata ~~basis the principal amount~~ basis, that may be purchased out of ~~Notes equal in amount to the~~ such Collateral Excess ~~Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount")~~Proceeds, if any, at ~~a purchase price~~ an offer price, in the case of the Notes, in cash in an amount equal to 100% of the principal amount thereof (or in the event such other Indebtedness was issued with original issue discount, 100% of the accreted value thereof), plus accrued and unpaid ~~interest and Liquidated Damages thereon~~ interest, if any (or such lesser price with respect to First Lien Obligations or Pari Passu Indebtedness, if any, as may be provided by the terms of such other Indebtedness), to, but not including, the date fixed for the closing of ~~purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date)~~such offer, in accordance with the procedures set forth in this ~~Indenture~~Indenture and the agreement governing the First Lien Obligations or Pari Passu Indebtedness, as applicable, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. Notices of a Collateral Asset Disposition Offer shall be sent by first class mail or sent electronically, at least 10 days but not more than 60 days before the purchase date to each Holder of the Notes at such Holder’s registered address or otherwise in accordance with the ~~following standards:~~ applicable procedures of DTC, with a copy to the Trustee. The Company may satisfy the foregoing obligation with respect to the Net Available Cash by making a Collateral Asset Disposition Offer prior to the expiration of the Proceeds Application Period (ithe “Collateral Advance Offer”) with respect to all or a part of the Net Available Cash (the “Collateral Advance Portion”) in advance of being required to do so by this Indenture. To the extent that the aggregate amount (or accreted value, as applicable) of Notes and, if applicable, any other First Lien Obligations or Pari Passu Indebtedness, as the case may be, validly tendered or otherwise surrendered in connection with a Collateral Asset Disposition Offer made with Collateral Excess Proceeds (or, in the case of an Collateral Advance Offer, the Collateral Advance Portion) is less than the amount offered in a Collateral Asset Disposition Offer, the Company may include any remaining Collateral Excess Proceeds (or, in the case of an Collateral Advance Offer, the Collateral Advance Portion) in Declined Collateral Excess Proceeds, and use such Declined Collateral Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of the Notes ~~surrendered by Holders thereof~~ or, if applicable, First Lien Obligations or Pari Passu Indebtedness validly tendered pursuant to any Collateral Asset Disposition Offer exceeds the amount of Collateral Excess ~~Proceeds~~Proceeds (or, in the case of a Collateral Advance Offer, the ~~Trustee~~ Collateral Advance Portion), the Company shall ~~select~~ allocate the ~~Notes~~ Collateral Excess Proceeds among the Notes, First Lien Obligations and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount (or accreted value, as applicable) of tendered Notes, First Lien Obligations and Pari Passu Indebtedness; provided that no Notes, First Lien Obligations or other Pari Passu Indebtedness will be selected and purchased in an unauthorized denomination. Upon completion of any Collateral Asset Disposition Offer, the amount of Net Available Cash and Collateral Excess Proceeds shall be reset at zero. If, with respect to any Asset Disposition of assets or property that does not constitute Collateral, at the expiration of the Proceeds Application Period with respect to such Asset Disposition, there remains Net Available Cash in excess of the greater of $75 million and 10% of LTM EBITDA (such amount of Net Available Cash that are equal to the greater of $75 million and 10% of LTM EBITDA, “Declined Excess Proceeds,” and such amount of Net Available Cash that are in excess of the greater of $75 million and 10% of LTM EBITDA, “Excess Proceeds”), then subject to the limitations with respect to Foreign Dispositions set forth below, the Company shall make an offer (an “Asset Disposition Offer”) no later than ten business days after the expiration of the Proceeds Application Period to all Holders and, if required by the terms of any Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, to purchase the maximum principal amount of such Notes and Pari Passu Indebtedness, as appropriate, on a pro rata basis, ~~based on~~ that may be purchased out of such Excess Proceeds, if any, at an offer price, in the case of the Notes, in cash in an amount equal to 100% of the principal amount thereof (or in the event such other Indebtedness was issued with original issue discount, 100% of ~~Notes tendered~~the accreted value thereof), plus accrued and unpaid interest, if any (or such lesser price with ~~such adjustments~~ respect to Pari Passu Indebtedness, if any, as may be ~~deemed appropriate~~ provided by the ~~Trustee~~terms of such other Indebtedness), ~~so that only Notes~~ to, but not including, the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture and the agreement governing the Pari Passu Indebtedness, as applicable, in minimum denominations of $~~1,000 or~~ 2,000 and in integral multiples ~~thereof~~ of $1,000 in excess thereof. Notices of an Asset Disposition Offer shall be ~~purchased~~sent by first class mail or sent electronically, at least 10 days but not more than 60 days before the purchase date to each Holder of the Notes at such Holder’s registered address or otherwise in accordance with the applicable procedures of DTC, with a copy to the Trustee. The Company may satisfy the foregoing obligation with respect to the Net Available Cash by making an Asset Disposition Offer prior to the expiration of the Proceeds Application Period (the “Advance Offer”) with respect to all or a part of the Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture. (iib) To the extent that the aggregate amount (or accreted value, as applicable) of Notes and, if applicable, any other Pari Passu Indebtedness validly tendered or otherwise surrendered in connection with an Asset Disposition Offer made with Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) is less than the amount offered in an Asset Disposition Offer, the Company may include any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) in Declined Excess Proceeds, and use such Declined Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of the Notes or, if applicable, Pari Passu Indebtedness validly tendered pursuant to ~~such~~ any Asset ~~Sale~~ Disposition Offer ~~is less than~~ exceeds the amount of Excess ~~Proceeds~~Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Company ~~may use any remaining~~ shall allocate the Excess Proceeds ~~following~~ among the ~~completion~~ Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the ~~Asset Sale Offer for general corporate purposes~~ aggregate principal amount (~~subject to the~~ or accreted value, as applicable) of tendered Notes and Pari Passu Indebtedness; provided that no Notes or other ~~provisions of this Indenture)~~Pari Passu Indebtedness will be selected and purchased in an unauthorized denomination. Upon completion of an any Asset ~~Sale~~ Disposition Offer, the amount of Net Available Cash and Excess Proceeds ~~then required to be otherwise applied in accordance with this covenant~~ shall be reset to at zero. To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than Dollars, ~~subject to any subsequent Asset Sale~~the amount thereof payable in respect of the Notes shall not exceed the net amount of funds in Dollars that is actually received by the Company upon converting such portion into Dollars. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the Notwithstanding any other provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant.Section 3.5, (di) ~~If at~~ to the extent that any ~~time any non-cash consideration received by the Company~~ of 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 all the Net Available Cash ~~thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount~~ of ~~Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder~~ any Asset Disposition by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Indenture (Owens & Minor Inc/Va/)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company ~~shall~~ will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ Disposition at least equal to the ~~fair market value (including as to the value of all non-cash consideration)~~ Fair Market Value of the shares and assets subject to such Asset ~~Sale~~ Disposition, as such Fair Market Value (~~which fair market value shall~~ on the date a legally binding commitment for such Asset Disposition was entered into) may be determined in good faith by the ~~Board~~ Company, whose determination shall be conclusive (including as to the value of ~~Directors for~~ all noncash consideration); (ii) in the case of any ~~transaction~~ Asset Disposition (or series of ~~transactions~~related Asset Dispositions) ~~involving in excess~~ having a Fair Market Value (on the date a legally binding commitment for such Asset Disposition was entered into) of $~~1,000,000) and~~ 50.0 million or more, at least 7575.0% of the consideration 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) for such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis) received ~~therefor~~ by the Company or such Restricted Subsidiary is in the form of ~~cash~~ cash; provided that this Section 411(a)(ii) shall not apply in the case of an Asset Disposition of all or ~~Cash Equivalents and is received at~~ a portion of the ~~time of such sale~~ equity interests in, or assets of, the VS Business; and (iiiii) an amount equal to ~~100~~100.0% (as may be adjusted pursuant to the last proviso to this Section 411(a)(iii)) of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the Company (or ~~such~~ any Restricted Subsidiary, as the case may be) as follows: (A) first, either (x) to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Senior Indebtedness of the Company or any Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness or Obligations in respect thereof or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness or Obligations in respect thereof (in each case other than Indebtedness owed to the Company or a Restricted Subsidiary) within ~~270~~ 365 days ~~from~~ after the later of the date of such Asset ~~Sale either:~~ Disposition and the date of receipt of such Net Available Cash, or (y) to the extent the Company or such Restricted Subsidiary elects, to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Company or another Restricted Subsidiary) within 365 days from the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 365 days to complete, the period of time necessary to complete such project; provided that the Company and its Restricted Subsidiaries will be deemed to have reinvested such Net Available Cash if and to the extent that, within 365 days after the Asset Disposition that generated the Net Available Cash, the Company or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement to consummate any such investment described in this clause (A) with the good faith expectation that such Net Available Cash will be applied to ~~prepay~~satisfy such commitment within 180 days of such commitment; (B) second, ~~repay~~to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above (such balance, ~~redeem~~ the “Excess Proceeds”), to make an offer to purchase Notes and (to the extent the Company or such Restricted Subsidiary elects, or is required by the terms thereof) to purchase, redeem, prepay or repay any other Senior Indebtedness of the Company or a Restricted Subsidiary, pursuant and subject to Section 411(b) and Section 411(c) and the agreements governing such other Indebtedness; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) above (the amount of such balance, “Declined Excess Proceeds”), to fund (to the extent consistent with any other applicable provision of this Indenture) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations or the making of other Restricted Payments); provided, however, that (1) in connection with any prepayment, repayment or purchase ~~any~~ of Indebtedness ~~that by its terms is not subordinate~~ pursuant to clause (A)(x) or (B) above, the Company or such Restricted Subsidiary will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the ~~Notes~~ principal amount so prepaid, repaid or purchased and (2) the Company (or any ~~Guarantee and~~Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (A)(y) above with respect to such Asset Disposition. Notwithstanding the foregoing provision in Section 411(a)(iii), to the extent that repatriating any or all of the Net Available Cash from any Asset Disposition by a Foreign Subsidiary (x) would result in material adverse tax consequences to the Company or any of its Subsidiaries or (y) is prohibited or delayed by applicable local law from being repatriated to the United States (in the case of the foregoing clauses (x) and (y), as reasonably determined by the Company in good faith which determination shall be conclusive), the portion of such Net Available Cash so affected will not be required to be applied in compliance with clause (iii) of the first paragraph of this covenant, and such amounts may be retained by the applicable Foreign Subsidiary; provided that, in the case of this clause (y), the Company shall take commercially reasonable efforts to cause the applicable Foreign Subsidiary to take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation, and if such repatriation of any of such affected Net Available Cash can be achieved such repatriation will be promptly effected and such repatriated Net Available Cash will be applied (whether or not repatriation actually occurs) in compliance with clause (iii) of the first paragraph of this covenant. The time periods set forth in this covenant shall not start until such time as the Net Available Cash may be repatriated whether or not such repatriation actually occurs. Notwithstanding the foregoing provisions of this Section 411, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 411 except to the extent that the aggregate Net Available Cash from all Asset Dispositions or equivalent amount that is not applied in accordance with this Section 411 exceeds $30.0 million. If the aggregate principal amount of Notes and/or other Indebtedness ~~under any revolving credit facility~~of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, ~~effect a permanent reduction~~ redemption or repayment) in ~~the availability under such revolving credit facility; and~~ connection with an offer pursuant to clause (B) ~~to:~~ above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding principal amount of such Notes and the denominator of which is the sum of the outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. For the purposes of Section 411(a)(ii), the following are deemed to be cash: (1) ~~make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or~~ Temporary Cash Investments and Cash Equivalents; (2) ~~acquire~~ the ~~Capital~~ assumption of Indebtedness of the Company (other than Disqualified Stock of ~~a Person~~ the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition; (3) Indebtedness of any Restricted Subsidiary that ~~becomes~~ is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the ~~acquisition~~ extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such ~~Capital Stock~~Indebtedness in connection with such Asset Disposition; ~~provided~~ (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such ~~Person is, at~~ Restricted Subsidiary into cash within 180 days; (5) consideration consisting of Indebtedness of the ~~time it becomes a~~ Company or any Restricted Subsidiary~~, engaged in a Related Business~~; or (C6) ~~a combination of prepayment and investment permitted by clauses (A)~~ Additional Assets; and (B7) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause, not to exceed an aggregate amount at any time outstanding equal to the greater of $100.0 million and 1.25% of Consolidated Tangible Assets (with the Fair Market Value of each item of Designated Noncash Consideration being measured on the date a legally binding commitment for such disposition (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in value). (b) ~~Any Net Available Cash not applied within 270 days after~~ In the ~~consummation~~ event of an Asset ~~Sale as provided in clauses (A~~Disposition that requires the purchase of Notes pursuant to Section 411(a)(iii)(B)~~, (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million~~, the Company will be required to purchase Notes validly tendered and not withdrawn pursuant to an offer by the Company for the Notes (the “Offer”) at a purchase price of 100.0% of their principal amount plus accrued and unpaid interest to the date of purchase in accordance with the procedures (including prorating among the Notes and other applicable Indebtedness) set forth in Section 411(c). If the aggregate purchase price of the Notes validly tendered and not withdrawn pursuant to the Offer is less than the Net Available Cash allotted to the purchase of Notes, the remaining Net Available Cash will be available to the Company and the Restricted Subsidiaries for use in accordance with Section 411(a)(iii)(B) (to repay other Senior Indebtedness of the Company or a Restricted Subsidiary) or Section 411(a)(iii)(C) and the amount of Excess Proceeds will be reset at zero. The Company shall not be required to make an ~~offer~~ Offer for Notes pursuant to this Section 411 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 411(a)(iii)(A)) is less than $50.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an ~~Holders (an "~~Offer is required with respect to the Net Available Cash from any subsequent Asset ~~Sale Offer"~~Disposition)~~, to purchase, on a pro rata basis the~~ . No Note will be repurchased in part if less than $2,000 in original principal amount of ~~Notes equal~~ such Note would be left outstanding. (c) The Company shall, not later than 45 days after the Company becomes obligated to make an Offer pursuant to this Section 411, mail or otherwise deliver in ~~amount~~ accordance with the applicable procedures of DTC a notice to each Holder with a copy to the ~~Excess Proceeds~~ Trustee stating: (1) that an Asset Disposition that requires the purchase of a portion of the Notes has occurred and ~~not just~~ that such Holder has the ~~amount thereof that exceeds $5.0 million~~right (subject to the prorating described below) (to require the ~~"Asset Sale Offer Amount"),~~ Company to purchase a portion of such Holder’s Notes at a purchase price in cash ~~in an amount~~ equal to ~~100~~100.0% of the principal amount ~~thereof~~ thereof, plus accrued and unpaid ~~interest and Liquidated Damages thereon~~ interest, if any, to the date of purchase (subject to the right of ~~each Holder~~ Holders of record on ~~the relevant Record Date~~ a record date to receive interest ~~due~~ on the relevant Interest Payment ~~Date~~Date falling prior to or on the purchase date); (2) the repurchase date (which shall be no earlier than 10 days nor later than 60 days from the date such notice is mailed or delivered, except that such notice may be delivered more than 60 days prior to the purchase date if the purchase is delayed as provided in clause (5) of this Section 411(c)); (3) the instructions determined by the Company, consistent with this Section 411, that a Holder must follow in order to have its Notes purchased; (4) the amount of the Offer which amount may be contingent upon the Net Available Cash remaining following the application of Net Available Cash pursuant to Section 411(a)(iii)(A) and (5) if such notice is mailed or delivered prior to the date the Net Available Cash attributable to such Asset Disposition is received, that such offer is conditioned upon receipt of such Net Available Cash and that the purchase date may, in ~~accordance with~~ the ~~procedures set forth in this Indenture~~Company’s discretion, ~~and in accordance with~~ be delayed until such time as the ~~following standards: (i) If~~ Net Available Cash is received. If, upon the expiration of the period for which the Offer remains open, the aggregate principal amount of Notes surrendered by Holders ~~thereof~~ exceeds the amount of ~~Excess Proceeds~~the Offer, the ~~Trustee~~ Company shall select the Notes to be purchased on a pro rata ~~basis, based on the principal amount of Notes tendered,~~ basis (with such adjustments as may be deemed appropriate by the ~~Trustee,~~ Company so that only Notes in denominations of $~~1,000~~ 2,000 or integral multiples of $1,000 in excess thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) ~~If at~~ The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any ~~time any non-cash consideration received by the Company~~ other securities laws or ~~any Subsidiary~~ regulations in connection with ~~any Asset Sale is converted into or sold or otherwise disposed~~ the repurchase of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made Notes pursuant to this Section ~~4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if~~ 411. To the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) extent that the ~~Trustee will return to the Holder~~ provisions of ~~a Global Note that is being purchased in part, such Global Note~~ any securities laws or regulations conflict with ~~a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion~~ provisions of ~~such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to~~ this Section ~~4.11. (f) On the Asset Sale Payment Date~~411, the Company ~~shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit~~ will comply with the ~~Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal~~ applicable securities laws and regulations and will not be deemed to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of have breached its obligations under this Section ~~4.11, the Trustee shall act as the Paying Agent~~411 by virtue thereof.

Appears in 1 contract

Sources: Indenture (L Brands, Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted ~~Subsidiary~~ Subsidiaries to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale 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 Sale (which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions) involving in excess of $1,000,000) and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents and is received at the time of such sale and (ii) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied by the Company (Issuer or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Issuer, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); (2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), with a purchase price in excess of (x) prior to the Conversion Date, $150 million and (y) after the Conversion Date, the greater of $150.0 million and 5.5% of LTM EBITDA, at least 75% of the consideration from such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis), (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents (which determination may be made by the Issuer, at its option, either (x) on the date of contractually agreeing to such Asset Disposition or (y) at the time the Asset Disposition is completed); and (3) within ~~270~~ 365 days from the later of (A) the date of such Asset Sale either: (A) to prepay, repay, redeem or purchase any Indebtedness that by its terms is not subordinate to the Notes or any Guarantee and, in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and Disposition and (B) ~~to: (1) make an investment in properties or assets that replace~~ the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result receipt of the acquisition of such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash ~~not applied within 270 days after~~ from such Asset Disposition (as may be extended by an Acceptable Commitment as set forth below, the ~~consummation of an Asset Sale as provided in clauses (A~~“Proceeds Application Period”), (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis the principal amount of Notes equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in an amount equal to ~~100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon~~ such Net Available Cash is applied, to the ~~date of purchase~~ extent the Issuer or any Restricted Subsidiary, as the case may be, elects: (~~subject~~ i) (a) to the ~~right~~ extent such Net Available Cash are from an Asset Disposition of ~~each Holder of record on~~ Collateral (w) to reduce, prepay, repay or purchase any First Lien Obligations, including Indebtedness under the ~~relevant Record Date to receive interest due on~~ Credit Agreements or the ~~relevant Interest Payment Date~~First Lien Notes (or any Refinancing Indebtedness in respect thereof), (x) to reduce, prepay, repay or purchase any Second Lien Obligations other than Second Lien Notes Obligations (or any Refinancing Indebtedness in respect thereof); provided that, if the Issuer shall so reduce, repay or repurchase such Second Lien Obligations, the Issuer ratably offer to repurchase Notes (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer or Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in ~~this Indenture~~privately negotiated transactions, ~~and~~ (y) to make an offer (in accordance with the ~~following standards:~~ procedures set forth below for a Collateral Asset Disposition Offer or Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, or (iz) ~~If the aggregate principal amount~~ to reduce, prepay, repay or purchase any Indebtedness of ~~Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds~~a Non-Guarantor (in each case, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less other than ~~the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject~~ Indebtedness owed to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company Issuer or any ~~Subsidiary~~ Restricted Subsidiary); provided, however, that, in connection with any ~~Asset Sale is converted into~~ reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (a), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of ~~for cash, then~~ in connection with 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~~Disposition constituted “borrowing base assets”) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults reduced in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the ~~Asset Sale Offer Amount in respect of all Notes or portions thereof~~ principal amount so ~~accepted; and (iii) deliver~~reduced, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, ~~to each Holder~~ repaid or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.purchased;

Appears in 1 contract

Sources: Indenture (Frontier Communications Corp)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company ~~shall~~ will not, and ~~shall~~ will not permit any of its Restricted ~~Subsidiary~~ Subsidiaries to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale 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 Sale (which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions) involving in excess of $1,000,000) and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents and is received at the time of such sale and (ii) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied by the Company (or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); (2) immediately before and after giving effect to such Asset Disposition, no Event of Default has occurred and is continuing; (3) in any such Asset Disposition (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis), (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents or Designated Non-Cash Consideration (provided that all Designated Non-Cash Consideration at such time does not exceed the greater of (x) $195.0 million and (y) 25.0% of LTM EBITDA on a pro forma basis); and (4) within ~~270~~ 450 days from the later of (A) the date of such Asset ~~Sale either~~Disposition and (B) the receipt of the Net Available Cash from such Asset Disposition (as may be extended by an Acceptable Commitment as set forth below, the “Proceeds Application Period”), an amount equal the Asset Disposition Percentage of such Net Available Cash is applied, to the extent the Company or any Restricted Subsidiary, as the case may be, elects: (Ai) (a) to the extent such Net Available Cash are from an Asset Disposition of Collateral, (x) to reduce, prepay, ~~repay, redeem~~ repay or purchase any First Lien Obligations (other than the Notes), including Indebtedness ~~that by its terms is not subordinate to~~ under the Credit Agreement and/or the Existing Notes (or any ~~Guarantee and,~~ Refinancing Indebtedness in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and (B) to: (1) make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stockrespect thereof); provided that ~~such Person is, at~~ the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash not applied within 270 days after Company ratably repay the ~~consummation of an Asset Sale as provided in clauses (A)~~Notes, (By) ~~or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required~~ to make an offer ~~to an Holders~~ (an "Asset Sale Offer"), to purchase, on a pro rata basis the principal amount of Notes equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon to the date of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth below for a Collateral Asset Disposition Offer or Asset Disposition Offer), redeem Notes as described under ‎Section 5.6, or purchase Notes through open market purchases or in ~~this Indenture~~privately negotiated transactions, ~~and~~ or (z) to reduce, prepay, repay or purchase any Indebtedness of a Non-Guarantor (in ~~accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds~~each case, ~~the Trustee shall select the Notes~~ other than Indebtedness owed to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any ~~Subsidiary~~ Restricted Subsidiary); provided that in connection with any ~~Asset Sale is converted into~~ reduction, prepayment, repayment or purchase of Indebtedness pursuant to this ‎Section 3.5(a)(4)(i), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of ~~for cash, then~~ in connection with 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~~Disposition constituted “borrowing base assets”) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults reduced in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the principal amount so reduced, prepaid, repaid or purchased; (b) to the extent such Net Available Cash is from an Asset ~~Sale Offer Amount~~ Disposition that does not constitute Collateral, (w) to reduce, prepay, repay or purchase any Indebtedness secured by a Lien on such asset, (x) to reduce, prepay, repay or purchase Pari Passu Indebtedness; provided that the Company ratably repay the Notes, (y) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to redeem Notes as described under ‎Section 5.6, or purchase Notes through open-market purchases or in privately negotiated transactions, or (z) to reduce, prepay, repay or purchase any Indebtedness of a Non-Guarantor (in each case, other than Indebtedness owed to the Company or any Restricted Subsidiary); provided that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this ‎Section 3.5(a)(4)(i), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of ~~all Notes~~ any asset-based credit facility to the extent the assets sold or ~~portions thereof so accepted; and (iii~~otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) ~~deliver, or cause~~ to be ~~delivered,~~ reduced in an amount equal to the ~~Trustee~~ principal amount so reduced, prepaid, repaid or purchased; (a) to invest (including capital expenditures) in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary); or (b) to invest (including capital expenditures) in any one or more businesses (provided that any such business will be a Restricted Subsidiary), properties or assets that replace the ~~Notes so accepted together~~ businesses, properties and/or assets that are the subject of such Asset Disposition, with ~~an Officers' Certificate listing~~ any such investment made by way of a capital or other lease valued at the ~~Notes or portions thereof tendered~~ present value of the minimum amount of payments under such lease (as reasonably determined by the Company); provided that the assets (including Capital Stock) acquired with the Net Available Cash of a disposition of Collateral are pledged as Collateral to the ~~Company and accepted~~ extent required under the Security Documents; provided that a binding agreement shall be treated as a permitted application of Net Available Cash from the date of such commitment with the good faith expectation that an amount equal to Net Available Cash will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”); provided, further, that if any Acceptable Commitment is later canceled or terminated for ~~payment. Subject to the provisions of Section 4.01~~any reason before such amount is applied in connection therewith, ~~the Paying Agent~~ then such Net Available Cash shall ~~promptly send by first class mail~~constitute Collateral Excess Proceeds or Excess Proceeds, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the ~~Paying Agent.~~case may be; or

Appears in 1 contract

Sources: Indenture (Ryan Specialty Holdings, Inc.)

Limitation on Sales of Assets and Subsidiary Stock. ~~(a)~~ The Company ~~shall~~ will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: : (i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ Disposition at least equal to the fair market value (as of the date on which a legally binding commitment for such Asset Disposition was entered into) of the shares and assets subject to such Asset Disposition, as such fair market value may be determined in good faith by the Company, whose determination shall be conclusive (including as to the value of all non-cash consideration); (ii) in the case of ~~the shares and assets subject to such~~ any Asset ~~Sale~~ Disposition (~~which~~ or series of related Asset Dispositions) having a fair market value ~~shall be~~ (as determined in good faith by the ~~Board~~ Company, whose determination shall be conclusive, as of ~~Directors~~ the date on which a legally binding commitment for ~~any transaction~~ such Asset Disposition was entered into) in excess of the greater of $177.5 million and 20.0% of Four Quarter Consolidated EBITDA, at least 75.0% of the consideration therefor (excluding, in the case of an Asset Disposition (or series of ~~transactions~~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) ~~involving in excess of $1,000,000) and at least 75% of the consideration~~ received ~~therefor~~ by the Company or such Restricted Subsidiary for such Asset Disposition, when taken together with any consideration received by the Company or any Restricted Subsidiary in connection with any other Asset Dispositions since the Issue Date (on a cumulative basis), is in the form of ~~cash or Cash Equivalents~~ cash; and ~~is received at the time of such sale and~~ (iiiii) an amount equal to ~~100~~100.0% (as such percentage may be adjusted pursuant to clause (3) of the provisos to Section 411(b) and Section 411(c)) of the Net Available Cash from such Asset ~~Sale~~ Disposition (such amount, the “Net Available Cash Amount”) is applied by the Company (or ~~such~~ any Restricted Subsidiary, as the case may be) ~~within 270 days from the date of such Asset Sale either: (A) to prepay, repay, redeem or purchase any Indebtedness that by its terms is not subordinate to the Notes or any Guarantee and,~~ in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and (B) to: (1) make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). accordance with paragraphs (b) ~~Any Net Available Cash not applied within 270 days after the consummation of an Asset Sale as provided in clauses (A), (B)~~ or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis the principal amount of Notes equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon to the date of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) ~~In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01~~ below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Secured Notes Indenture (Cornerstone Building Brands, Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted ~~Subsidiary~~ Subsidiaries to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale unless:~~ Disposition unless (i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset ~~Sale~~ Disposition at least equal to the fair market ~~value~~ value, as determined in good faith by the Company's Board of Directors (including as to the value of all non-cash consideration) ), of the shares and assets subject to such Asset ~~Sale~~ Disposition, (~~which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions~~ii) ~~involving in excess of $1,000,000) and~~ at least 7580% of the consideration thereof received ~~therefor~~ by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents and ~~is received at the time of such sale and~~ (iiiii) an amount equal to 100% of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company or any Restricted Subsidiary elects (or is required by the terms of any Secured indebtedness), (x) to prepay, repay or purchase Secured Indebtedness or (y) to the investment in or acquisition of Additional Assets within 270 days from the later of the date of such Asset ~~Sale either:~~ Disposition or the receipt of such Net Available Cash; (B) second, within 270 days from the receipt of such Net Available Cash, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to make an offer to purchase Notes at 101% of their principal amount 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) to prepay, repay, redeem or purchase any Indebtedness that by its terms is not subordinate to the Notes or any Guarantee and, in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and and (B) ~~to: (1) make an investment in properties or assets~~ and the date that ~~replace~~ is one year from the ~~properties or assets that were the subject~~ receipt of such ~~Asset Sale or in properties or assets that will be used in a Related Business or (2) acquire~~ Net Available Cash, to the ~~Capital Stock of a Person that becomes a Restricted Subsidiary as a result~~ extent of the ~~acquisition~~ balance of such ~~Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged~~ Net Available Cash after application in ~~a Related Business; or (C) a combination of prepayment and investment permitted by~~ accordance with clauses (A) and (B). , to prepay, repay or repurchase Indebtedness (bother than Preferred Stock) ~~Any~~ of the Company or of a Wholly-Owned Subsidiary (in each case other than Indebtedness owed to the Company); and (D) fourth, to the extent of the balance of such Net Available Cash ~~not applied within 270 days~~ after ~~the consummation of an Asset Sale as provided~~ application in accordance with clauses (A), (B) and (C), to (w) the investment in or acquisition of Additional Assets, (x) the making of Temporary Cash Investments, (y) the prepayment, repayment or purchase of Indebtedness of the Company (other than Indebtedness owing to any Subsidiary of the Company) or Indebtedness of any Subsidiary (other than Indebtedness owed to the Company or any of its Subsidiaries) or (z) any other purpose otherwise permitted under the Indenture, in each case within the later of 45 days after the application of Net Available Cash in accordance with clauses (A), (B) and (C) or the date that is one year from the receipt of ~~paragraph~~ such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (aA), (B), (C) ~~above~~ or (D) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions, the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net For the purposes of this covenant, the following will be deemed to ~~constitute "Excess Proceeds~~be cash: (x) the assumption by the transferee of Senior Indebtedness of the Company or Senior Indebtedness of any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Senior Indebtedness in connection with such Asset Disposition (in which case the Company shall, without further action, be deemed to have applied such assumed Indebtedness in accordance with clause (A) of the preceding paragraph) and (y) securities received by the Company or any Restricted Subsidiary of the Company from the transferee that are promptly (and in any event within 60 days) converted by the Company or such Restricted Subsidiary into cash.~~" When~~ (b) In the ~~aggregate amount~~ event of ~~Excess Proceeds exceeds $5.0 million~~an Asset Disposition that requires the purchase of Notes pursuant to clause (a)(iii)(B), the Company will be required to ~~make~~ purchase Notes tendered pursuant to an offer ~~to an Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis~~ by the ~~principal amount of~~ Company for the Notes ~~equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"),~~ at a purchase price ~~in cash in an amount equal to 100~~of 101% of ~~the~~ their principal amount ~~thereof~~ plus accrued and unpaid ~~interest and Liquidated Damages thereon~~ interest, if any, to the purchase date ~~of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date),~~ in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture~~, and in accordance with the following standards: (i)~~ . If the aggregate ~~principal amount~~ purchase price of ~~Notes surrendered by Holders thereof exceeds~~ the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to ~~such Asset Sale Offer~~ the offer is less than the ~~Excess Proceeds~~Net Available Cash allotted to the purchase of the Notes, the Company ~~may use any~~ will apply the remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied Net Available Cash in accordance with ~~this covenant shall be reset to zero, subject to any subsequent Asset Sale~~clauses (a) (iii) (C) or (D) above. (c) In The Company will comply, to the ~~event~~ extent applicable, with the requirements of ~~the transfer of substantially all (but not all~~Section 14(e) of the ~~property~~ Exchange Act and ~~assets~~ any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Indenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this covenant, the Company will comply with the applicable securities laws and ~~its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall~~ regulations and will not be deemed to have ~~sold the properties and assets of the Company and~~ breached its ~~Subsidiaries not so transferred for purposes of~~ obligations under this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenantIndenture by virtue thereof. (d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Indenture (American Architectural Products Corp)

Limitation on Sales of Assets and Subsidiary Stock. (a) The ~~Company~~ Issuers shall not, and the Issuers shall not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale 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 Sale (which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions) involving in excess of $1,000,000) and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents and is received at the time of such sale and (ii) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied by the Company (Issuer or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the Fair Market Value (such Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Issuer, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); (2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), with a purchase price in excess of the greater of (i) $14 million and (ii) an amount equal to 10% of LTM EBITDA, at least 75% of the consideration from such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis), (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and (3) within ~~270~~ 450 days from the later of (A) the date of such Asset ~~Sale either~~Disposition and (B) the receipt of the Net Available Cash from such Asset Disposition (as may be extended by an Acceptable Commitment as set forth below, the “Proceeds Application Period”), an amount equal to the Net Available Cash (the “Applicable Proceeds”) is applied, to the extent the Issuer or any Restricted Subsidiary, as the case may be, elects: (i) (A) to the extent such Applicable Proceeds are from an Asset Disposition of Collateral, (x) to reduce, prepay, ~~repay, redeem~~ repay or purchase any Super-Priority Indebtedness ~~that by its terms is not subordinate to the Notes~~ or any Guarantee and, in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and (B) to: (1) make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash not applied within 270 days after the consummation of an Asset Sale as provided in clauses (A), (B) Other ▇▇▇▇ ▇▇▇▇ Obligations or (Cy) ~~of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required~~ to make an offer ~~to an Holders~~ (an "Asset Sale Offer"), to purchase, on a pro rata basis the principal amount of Notes equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon to the date of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth below for a Collateral Asset Disposition Offer or Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in ~~this Indenture~~privately negotiated transactions (in each case, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less other than ~~the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject~~ Indebtedness owed to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company Issuer or any ~~Subsidiary~~ Restricted Subsidiary); provided, however, that, in connection with any ~~Asset Sale is converted into~~ reduction, prepayment, repayment or ~~sold or otherwise disposed~~ purchase of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made Indebtedness pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; clause (~~ii) the Asset Sale Offer Amount~~i), the ~~amount~~ Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of ~~Excess Proceeds that are available~~ any revolving credit facility (including Indebtedness under the Credit Agreement or any Refinancing Indebtedness in respect thereof)) to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults reduced in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the ~~Asset Sale Offer Amount in respect of all Notes or portions thereof~~ principal amount so ~~accepted; and (iii) deliver~~reduced, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, ~~to each Holder~~ repaid or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.purchased;

Appears in 1 contract

Sources: Indenture (Savers Value Village, Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company ~~shall~~ will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ Disposition at least equal to the ~~fair market value (including as to the value of all non-cash consideration)~~ Fair Market Value of the shares and assets subject to such Asset ~~Sale~~ Disposition, as such Fair Market Value (~~which fair market value shall~~ on the date a legally binding commitment for such Asset Disposition was entered into) may be determined in good faith by the ~~Board~~ Company, whose determination shall be conclusive (including as to the value of ~~Directors for~~ all noncash consideration); (ii) in the case of any ~~transaction~~ Asset Disposition (or series of ~~transactions~~related Asset Dispositions) ~~involving in excess~~ having a Fair Market Value (on the date a legally binding commitment for such Asset Disposition was entered into) of $~~1,000,000) and~~ 50.0 million or more, at least 7575.0% of the consideration 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) for such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis) received ~~therefor~~ by the Company or such Restricted Subsidiary is in the form of ~~cash~~ cash; provided that this Section 411(a)(ii) shall not apply in the case of an Asset Disposition of all or ~~Cash Equivalents and is received at~~ a portion of the ~~time of such sale~~ equity interests in, or assets of, the VS Business; and (iiiii) an amount equal to ~~100~~100.0% (as may be adjusted pursuant to the last proviso to this Section 411(a)(iii)) of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the Company (or ~~such~~ any Restricted Subsidiary, as the case may be) as follows: (A) first, either (x) to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Senior Indebtedness of the Company or any Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness or Obligations in respect thereof or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness or Obligations in respect thereof (in each case other than Indebtedness owed to the Company or a Restricted Subsidiary) within ~~270~~ 365 days ~~from~~ after the later of the date of such Asset ~~Sale either: (A)~~ Disposition and the date of receipt of such Net Available Cash; provided that in addition to ~~prepay~~the foregoing, ~~repay, redeem~~ the Net Available Cash from an Asset Disposition of Collateral may not be applied to prepay or repay or purchase any Indebtedness other than Senior-Priority Obligations, or (y) to the extent the Company or such Restricted Subsidiary elects, to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Company or another Restricted Subsidiary) within 365 days from the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 365 days to complete, the period of time necessary to complete such project; provided that the Company and its Restricted Subsidiaries will be deemed to have reinvested such Net Available Cash if and to the extent that, within 365 days after the Asset Disposition that generated the Net Available Cash, the Company or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement to consummate any such investment described in this clause (A) with the good faith expectation that such Net Available Cash will be applied to satisfy such commitment within 180 days of such commitment; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above (such balance, the “Excess Proceeds”), to make an offer to purchase Notes and (to the extent the Company or such Restricted Subsidiary elects, or is required by ~~its~~ the terms thereof) to purchase, redeem, prepay or repay any other Senior Indebtedness of the Company or a Restricted Subsidiary (provided that Excess Proceeds from an Asset Disposition of Collateral may be applied to purchase, redeem, prepay or repay any Senior Indebtedness that is not ~~subordinate~~ a Senior-Priority Obligation only after all Senior-Priority Obligations have been paid in full), pursuant and subject to Section 411(b) and Section 411(c) and the agreements governing such other Indebtedness; and (C) third, to the ~~Notes~~ extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) above (the amount of such balance, “Declined Excess Proceeds”), to fund (to the extent consistent with any other applicable provision of this Indenture) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations or the making of other Restricted Payments); provided, however, that (1) in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A)(x) or (B) above, the Company or such Restricted Subsidiary will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased and (2) the Company (or any ~~Guarantee and~~Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (A)(y) above with respect to such Asset Disposition. Notwithstanding the foregoing provision in Section 411(a)(iii), to the extent that repatriating any or all of the Net Available Cash from any Asset Disposition by a Foreign Subsidiary (x) would result in material adverse tax consequences to the Company or any of its Subsidiaries or (y) is prohibited or delayed by applicable local law from being repatriated to the United States (in the case of the foregoing clauses (x) and (y), as reasonably determined by the Company in good faith which determination shall be conclusive), the portion of such Net Available Cash so affected will not be required to be applied in compliance with clause (iii) of the first paragraph of this covenant, and such amounts may be retained by the applicable Foreign Subsidiary; provided that, in the case of this clause (y), the Company shall take commercially reasonable efforts to cause the applicable Foreign Subsidiary to take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation, and if such repatriation of any of such affected Net Available Cash can be achieved such repatriation will be promptly effected and such repatriated Net Available Cash will be applied (whether or not repatriation actually occurs) in compliance with clause (iii) of the first paragraph of this covenant. The time periods set forth in this covenant shall not start until such time as the Net Available Cash may be repatriated whether or not such repatriation actually occurs. Notwithstanding the foregoing provisions of this Section 411, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 411 except to the extent that the aggregate Net Available Cash from all Asset Dispositions or equivalent amount that is not applied in accordance with this Section 411 exceeds $30.0 million. If the aggregate principal amount of Notes and/or other Indebtedness ~~under any revolving credit facility~~of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, ~~effect a permanent reduction~~ redemption or repayment) in ~~the availability under such revolving credit facility; and~~ connection with an offer pursuant to clause (B) ~~to:~~ above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary (without limiting the proviso set forth in clause (B)), with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding principal amount of such Notes and the denominator of which is the sum of the outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. For the purposes of Section 411(a)(ii), the following are deemed to be cash: (1) ~~make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or~~ Temporary Cash Investments and Cash Equivalents; (2) ~~acquire~~ the ~~Capital~~ assumption of Indebtedness of the Company (other than Disqualified Stock of ~~a Person~~ the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition; (3) Indebtedness of any Restricted Subsidiary that ~~becomes~~ is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the ~~acquisition~~ extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such ~~Capital Stock~~Indebtedness in connection with such Asset Disposition; ~~provided~~ (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such ~~Person is, at~~ Restricted Subsidiary into cash within 180 days; (5) consideration consisting of Indebtedness of the ~~time it becomes a~~ Company or any Restricted Subsidiary~~, engaged in a Related Business~~; or (C6) ~~a combination of prepayment and investment permitted by clauses (A)~~ Additional Assets; and (B7) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause, not to exceed an aggregate amount at any time outstanding equal to the greater of $100.0 million and 1.25% of Consolidated Tangible Assets (with the Fair Market Value of each item of Designated Noncash Consideration being measured on the date a legally binding commitment for such disposition (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in value). (b) ~~Any Net Available Cash not applied within 270 days after~~ In the ~~consummation~~ event of an Asset ~~Sale as provided in clauses (A~~Disposition that requires the purchase of Notes pursuant to Section 411(a)(iii)(B)~~, (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million~~, the Company will be required to purchase Notes validly tendered and not withdrawn pursuant to an offer by the Company for the Notes (the “Offer”) at a purchase price of 100.0% of their principal amount plus accrued and unpaid interest to the date of purchase in accordance with the procedures (including prorating among the Notes and other applicable Indebtedness) set forth in Section 411(c). If the aggregate purchase price of the Notes validly tendered and not withdrawn pursuant to the Offer is less than the Net Available Cash allotted to the purchase of Notes, the remaining Net Available Cash will be available to the Company and the Restricted Subsidiaries for use in accordance with Section 411(a)(iii)(B) (to repay other Senior Indebtedness of the Company or a Restricted Subsidiary) or Section 411(a)(iii)(C) and the amount of Excess Proceeds will be reset at zero. The Company shall not be required to make an ~~offer~~ Offer for Notes pursuant to this Section 411 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 411(a)(iii)(A)) is less than $50.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an ~~Holders (an "~~Offer is required with respect to the Net Available Cash from any subsequent Asset ~~Sale Offer"~~Disposition)~~, to purchase, on a pro rata basis the~~ . No Note will be repurchased in part if less than $2,000 in original principal amount of ~~Notes equal~~ such Note would be left outstanding. (c) The Company shall, not later than 45 days after the Company becomes obligated to make an Offer pursuant to this Section 411, mail or otherwise deliver in ~~amount~~ accordance with the applicable procedures of DTC a notice to each Holder with a copy to the ~~Excess Proceeds~~ Trustee stating: (1) that an Asset Disposition that requires the purchase of a portion of the Notes has occurred and ~~not just~~ that such Holder has the ~~amount thereof that exceeds $5.0 million~~right (subject to the prorating described below) (to require the ~~"Asset Sale Offer Amount"),~~ Company to purchase a portion of such Holder’s Notes at a purchase price in cash ~~in an amount~~ equal to ~~100~~100.0% of the principal amount ~~thereof~~ thereof, plus accrued and unpaid ~~interest and Liquidated Damages thereon~~ interest, if any, to the date of purchase (subject to the right of ~~each Holder~~ Holders of record on ~~the relevant Record Date~~ a record date to receive interest ~~due~~ on the relevant Interest Payment ~~Date~~Date falling prior to or on the purchase date); (2) the repurchase date (which shall be no earlier than 10 days nor later than 60 days from the date such notice is mailed or delivered, except that such notice may be delivered more than 60 days prior to the purchase date if the purchase is delayed as provided in clause (5) of this Section 411(c)); (3) the instructions determined by the Company, consistent with this Section 411, that a Holder must follow in order to have its Notes purchased; (4) the amount of the Offer which amount may be contingent upon the Net Available Cash remaining following the application of Net Available Cash pursuant to Section 411(a)(iii)(A) and (5) if such notice is mailed or delivered prior to the date the Net Available Cash attributable to such Asset Disposition is received, that such offer is conditioned upon receipt of such Net Available Cash and that the purchase date may, in ~~accordance with~~ the ~~procedures set forth in this Indenture~~Company’s discretion, ~~and in accordance with~~ be delayed until such time as the ~~following standards: (i) If~~ Net Available Cash is received. If, upon the expiration of the period for which the Offer remains open, the aggregate principal amount of Notes surrendered by Holders ~~thereof~~ exceeds the amount of ~~Excess Proceeds~~the Offer, the ~~Trustee~~ Company shall select the Notes to be purchased on a pro rata ~~basis, based on the principal amount of Notes tendered,~~ basis (with such adjustments as may be deemed appropriate by the ~~Trustee,~~ Company so that only Notes in denominations of $~~1,000~~ 2,000 or integral multiples of $1,000 in excess thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) ~~If at~~ The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any ~~time any non-cash consideration received by the Company~~ other securities laws or ~~any Subsidiary~~ regulations in connection with ~~any Asset Sale is converted into or sold or otherwise disposed~~ the repurchase of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made Notes pursuant to this Section ~~4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if~~ 411. To the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) extent that the ~~Trustee will return to the Holder~~ provisions of ~~a Global Note that is being purchased in part, such Global Note~~ any securities laws or regulations conflict with ~~a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion~~ provisions of ~~such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to~~ this Section ~~4.11. (f) On the Asset Sale Payment Date~~411, the Company ~~shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit~~ will comply with the ~~Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal~~ applicable securities laws and regulations and will not be deemed to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of have breached its obligations under this Section ~~4.11, the Trustee shall act as the Paying Agent~~411 by virtue thereof.

Appears in 1 contract

Sources: Indenture (L Brands, Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted ~~Subsidiary~~ Subsidiaries to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale 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 Sale (which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions) involving in excess of $1,000,000) and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents and is received at the time of such sale and (ii) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied by the Company (or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); (2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), with a purchase price in excess of the greater of $1,550.0 million and 30.0% of LTM EBITDA, at least 75.0% of the consideration from such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis) (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise), received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and (3) within ~~270~~ 540 days from the later of (A) the date of such Asset ~~Sale either~~Disposition and (B) the receipt of the Net Available Cash from such Asset Disposition (as may be extended by an Acceptable Commitment or a Second Commitment as set forth below or as otherwise set forth in clause (b) below, the “Proceeds Application Period”), an amount equal to the Applicable Percentage of such Net Available Cash (the “Applicable Proceeds”) is applied, to the extent the Company or any Restricted Subsidiary elects: (A) (i) to reduce, prepay, ~~repay~~repay or purchase any Secured Indebtedness (other than Indebtedness owed to the Company or any Restricted Subsidiary), including Indebtedness under the Credit Agreement (or any Refinancing Indebtedness in respect thereof), (ii) to reduce, prepay, repay or purchase Pari Passu Indebtedness that is not otherwise Secured Indebtedness; provided, that, to the extent the Company or any Restricted Subsidiary elects to reduce, prepay, repay or purchase Pari Passu Indebtedness (other than the Notes) pursuant to this clause (ii), the Company or any Restricted Subsidiary shall equally and ratably make an offer to purchase Notes (in accordance with the procedures set forth below for an Asset Disposition Offer), redeem Notes pursuant to Section 5.6 hereof or purchase Notes by any means other than a redemption, including, without limitation, in negotiated transactions, open market purchases, by tender offer or any other transactions with one or more Holders and/or beneficial owners of Notes, (iii) to make an offer to purchase Notes (in accordance with the procedures set forth below for an Asset Disposition Offer), redeem Notes pursuant to Section 5.6 hereof or purchase Notes by any means other than a redemption, including, without limitation, in negotiated transactions, open market purchases, by tender offer or any other transactions with one or more Holders and/or beneficial owners of Notes, or (iv) to reduce, prepay, repay or purchase any Indebtedness of a Non-Guarantor (including, for the avoidance of doubt, any Existing SPV and Future SPV that ~~by its terms~~ is ~~not subordinate~~ a Non-Guarantor) (in each case, other than Indebtedness owed to the ~~Notes~~ Company or any ~~Guarantee and~~Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (a), the ~~case~~ Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of in connection with such ~~Indebtedness under any revolving credit facility~~Asset Disposition constituted “borrowing base assets”) to be reduced in an amount equal to the principal amount so reduced, ~~effect a permanent reduction in the availability under such revolving credit facility; and~~prepaid, repaid or purchased; (B) ~~to:~~ (1i) ~~make~~ to invest (including capital expenditures) in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary); or (ii) to invest (including capital expenditures) in any one or more businesses, properties or assets that replace the businesses, properties or and/or assets that ~~were~~ are the subject of such Asset ~~Sale~~ Disposition, with any such investment made by way of a capital or ~~in properties or assets~~ other lease valued at the present value of the minimum amount of payments under such lease (as reasonably determined by the Company); provided, however, that a binding agreement shall be treated as a permitted application of Applicable Proceeds from the date of such commitment with the good faith expectation that an amount equal to Applicable Proceeds will be ~~used~~ applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in ~~a Related Business or (2) acquire~~ the ~~Capital Stock of a Person~~ event that ~~becomes a~~ any Acceptable Commitment is later cancelled or terminated for any reason before such amount is applied in connection therewith, the Company or such Restricted Subsidiary as enters into another Acceptable Commitment (a ~~result of the acquisition~~ “Second Commitment”) within 180 days of such ~~Capital Stock~~cancellation or termination; provided further that ~~such Person is~~if any Second Commitment is later cancelled or terminated for any reason before any Net Available Cash is applied, at then the ~~time it becomes a Restricted Subsidiary~~Net Available Cash shall constitute Excess Proceeds or Declined Excess Proceeds, ~~engaged in a Related Business~~as applicable; or (C) a any combination of ~~prepayment~~ the foregoing; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to this Section 3.5, the Company or the applicable Restricted Subsidiaries may apply such Applicable Proceeds temporarily to reduce Indebtedness (including under the Credit Facilities) or otherwise apply such Applicable Proceeds in any manner not prohibited by this Indenture, and (2) the Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Applicable Proceeds attributable to any given Asset Disposition (provided that such investment ~~permitted by clauses (A~~shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (B)) above with respect to such Asset Disposition. (b) ~~Any Net Available Cash not applied within 270~~ If, with respect to any Asset Disposition, at the expiration of the Proceeds Application Period with respect to such Asset Disposition, there remains Applicable Proceeds in excess of the greater of $150.0 million and 3.0% of LTM EBITDA (such amount of Applicable Proceeds that are equal to the greater of $150.0 million and 3.0% of LTM EBITDA, “Declined Excess Proceeds,” and such amount of Applicable Proceeds that are in excess of the greater of $150.0 million and 3.0% of LTM EBITDA, “Excess Proceeds”), then subject to the limitations with respect to Foreign Dispositions set forth below, the Company shall make an offer (an “Asset Disposition Offer”) no later than ten business days after the ~~consummation~~ expiration of ~~an Asset Sale as provided in clauses (A)~~the Proceeds Application Period to all Holders of Notes and, ~~(B) or (C)~~ if required by the terms of ~~paragraph (a) above will be deemed~~ any Pari Passu Indebtedness, to ~~constitute "Excess Proceeds." When~~ all holders of such Pari Passu Indebtedness, to purchase the ~~aggregate~~ maximum principal amount of ~~Excess Proceeds exceeds $5.0 million~~such Notes and Pari Passu Indebtedness, ~~the Company will be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase~~as appropriate, on a pro rata ~~basis the principal amount~~ basis, that may be purchased out of ~~Notes equal in amount to the~~ such Excess ~~Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount")~~Proceeds, if any, at ~~a purchase price~~ an offer price, in the case of the Notes, in cash in an amount equal to ~~100~~100.0% of the principal amount thereof (or in the event such other Indebtedness was issued with original issue discount, 100.0% of the accreted value thereof), plus accrued and unpaid ~~interest and Liquidated Damages thereon~~ interest, if any (or such lesser price with respect to Pari Passu Indebtedness, if any, as may be provided by the terms of such other Indebtedness), to, but not including, the date fixed for the closing of ~~purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date)~~such offer, in accordance with the procedures set forth in this ~~Indenture~~Indenture and the agreement governing the Pari Passu Indebtedness, as applicable, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. Notices of an Asset Disposition Offer shall be sent by first class mail or sent electronically, at least 10 days but not more than 60 days before the purchase date to each Holder of the Notes at such Holder’s registered address or otherwise in accordance with the ~~following standards:~~applicable procedures of DTC. The Company may satisfy the foregoing obligation with respect to the Applicable Proceeds by making an Asset Disposition Offer prior to the expiration of the Proceeds Application Period (the “Advance Offer”) with respect to such Applicable Proceeds (the “Advance Portion”) in advance of being required to do so by this Indenture. (ic) To the extent that the aggregate amount (or accreted value, as applicable) of Notes and, if applicable, any other Pari Passu Indebtedness validly tendered or otherwise surrendered in connection with an Asset Disposition Offer made with Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) is less than the amount offered in an Asset Disposition Offer, the Company may include any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) in Declined Excess Proceeds, and use such Declined Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of the Notes ~~surrendered by Holders thereof~~ or, if applicable, Pari Passu Indebtedness validly tendered pursuant to any Asset Disposition Offer exceeds the amount of Excess ~~Proceeds~~Proceeds (or, in the case of an Advance Offer, the ~~Trustee~~ Advance Portion), the Company shall ~~select~~ allocate the Excess Proceeds among the Notes and Pari Passu Indebtedness to be purchased on a pro rata ~~basis, based~~ basis on the ~~principal amount~~ basis of ~~Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If~~ the aggregate principal amount (or accreted value, as applicable) of tendered Notes tendered pursuant to such Asset 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 (subject to the and Pari Passu Indebtedness; provided that no Notes or other ~~provisions of this Indenture)~~Pari Passu Indebtedness will be selected and purchased in an unauthorized denomination. Upon completion of an any Asset ~~Sale~~ Disposition Offer, the amount of Applicable Proceeds and Excess Proceeds ~~then required to be otherwise applied in accordance with this covenant~~ shall be reset to at zero~~, subject to~~ . To the extent that any ~~subsequent Asset Sale. (c) In the event~~ portion of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash ~~for purposes~~ or Applicable Percentage thereof payable in respect of ~~this covenant~~the Notes is denominated in a currency other than Dollars, the amount thereof payable in respect of the Notes shall not exceed the net amount of funds in Dollars that is actually received by the Company upon converting such portion into Dollars. (d) ~~If at~~ Notwithstanding any ~~time~~ other provisions of this Section 3.5, (1) to the extent that any of or all the Net Available Cash or Applicable Percentage of any Asset Disposition is received or deemed to be received by a Foreign Subsidiary (a “Foreign Disposition”) is (x) prohibited or delayed by applicable local law, (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous organizational or administrative impediments, in each case, from being repatriated to the United States, the portion of such Net Available Cash so affected will not be required to be applied in compliance with this covenant, and such amounts may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law documents or agreements will not permit repatriation to the United States (the Company hereby agreeing to use reasonable efforts (as determined in the Company’s reasonable business judgment) to otherwise cause the applicable Foreign Subsidiary to within one year following the date on which the respective payment would otherwise have been required, promptly take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation), and if within one year following the date on which the respective payment would otherwise have been required such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, applicable organizational impediment or other impediment, such repatriation will be promptly effected and the amount of such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation could be made) applied (net of additional Taxes payable or reserved against as a result thereof) (whether or not repatriation actually occurs) in compliance with this Section 3.5; and (2) to the extent that the Company has determined in good faith that repatriation of any of or all the Net Available Cash of any Foreign Disposition would have an adverse Tax consequence (which, for the avoidance of doubt, includes, but is not limited to, any prepayment out of such Net Available Cash whereby doing so the Company, any of its Subsidiaries, any Parent Entity or any of their respective affiliates and/or equity owners would incur a Tax liability, including a Tax dividend, deemed dividend pursuant to Code Section 956 or a withholding Tax), the Net Available Cash so affected may be retained by the applicable Foreign Subsidiary. The non-~~cash consideration~~ application of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default. (e) For the purposes of Section 3.5(a)(2) hereof, the following will be deemed to be cash: (1) the assumption by the transferee of Indebtedness or other liabilities, contingent or otherwise, of the Company or a Restricted Subsidiary (other than Subordinated Indebtedness of the Company or a Guarantor) or the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition; (2) securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash and Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within 180 days following the closing of such Asset Disposition; (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with ~~any~~ such Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale OfferDisposition; (ii4) ~~the Asset Sale Offer Amount, the amount~~ consideration consisting of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless Indebtedness of the Company ~~defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and~~ (other than Subordinated Indebtedness) received after the ~~Asset Sale Purchase Date; (v) that~~ Issue Date from Persons who are not the Company or any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global NoteRestricted Subsidiary; and (x5) any Designated Non-Cash Consideration received by the Company or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, taken together with all other ~~information necessary to enable any Holder to tender Notes and to have such Notes purchased~~ Designated Non-Cash Consideration received pursuant to this ~~Section 4.11~~clause that is at that time outstanding, not to exceed the greater of $1,550.0 million and 30.0% of LTM EBITDA, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value. (f) On To the ~~Asset Sale Payment Date~~extent that the provisions of any securities laws, rules or regulations, including Rule 14e-1 under the Exchange Act, conflict with the provisions of this Indenture, the Company shall not be deemed to have breached its obligations described in this Indenture by virtue of compliance therewith. (ig) ~~accept for payment~~ The provisions of this Indenture relative to the Company’s obligation to make an offer to repurchase the Notes as a result of an Asset Disposition may be waived or modified with the written consent of the Holders of a majority in principal amount of the Notes then outstanding. (h) The Credit Agreement may prohibit or limit, and future credit agreements or other agreements to which the Company becomes a party may prohibit or limit, the Company from purchasing any Notes ~~or portions thereof properly tendered and selected for purchase~~ pursuant to this Section 3.5. In the ~~Asset Sale Offer and Section 4.11(e) hereof~~event the Company is prohibited from purchasing the Notes, ~~(ii) irrevocably deposit with~~ the ~~Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal~~ Company could seek the consent of its lenders to the ~~Asset Sale Offer Amount in respect~~ purchase of ~~all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing~~ the Notes or ~~portions thereof tendered~~ could attempt to refinance the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for borrowings that contain such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.prohib

Appears in 1 contract

Sources: Indenture (CoreWeave, Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The ~~Company~~ Issuer shall not, and shall not permit any of its Restricted ~~Subsidiary~~ Subsidiaries to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale 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 Sale (which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions) involving in excess of $1,000,000) and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents and is received at the time of such sale and (ii) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied by the Company (Issuer or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Issuer, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); (2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap) with a purchase price in excess of the greater of $375.0 million and 15.0% of LTM EBITDA, if after giving pro forma effect to such Asset Disposition, the Consolidated First Lien Secured Leverage Ratio is greater than 3.50 to 1.00, at least 75% of the consideration from such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis), (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and (3) within ~~270~~ 540 days from the later of (A) the date of such Asset ~~Sale either:~~Disposition and (B) the receipt of the Net Available Cash from such Asset Disposition (as may be extended by an Acceptable Commitment or a Second Commitment as set forth below, the “Proceeds Application Period”), an amount equal to the Applicable Percentage of such Net Available Cash (the “Applicable Proceeds”) is applied, to the extent the Issuer or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness): (i) (A) to reduce, prepay, ~~repay~~repay or purchase any Secured Indebtedness, including Indebtedness under the Credit Agreement (or any Refinancing Indebtedness in respect thereof), (B) to reduce, prepay, repay or purchase First Priority Obligations or Pari Passu Indebtedness, (C) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to redeem Notes as described under Section 5.7 hereof, or purchase Notes through open-market purchases or in privately negotiated transactions, or (D) to reduce, prepay, repay or purchase any Indebtedness ~~that by its terms is not subordinate~~ of a Non-Guarantor (in each case, other than Indebtedness owed to the ~~Notes~~ Issuer or any ~~Guarantee and~~Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (i), the ~~case~~ Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of in connection with such ~~Indebtedness under any revolving credit facility~~Asset Disposition constituted “borrowing base assets”) to be reduced in an amount equal to the principal amount so reduced, ~~effect~~ prepaid, repaid or purchased; (ii) (A) to invest (including capital expenditures) in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a ~~permanent reduction in the availability under such revolving credit facility~~Restricted Subsidiary); ~~and~~ or (B) ~~to:~~ to invest (1including capital expenditures) ~~make an investment~~ in any one or more businesses, properties or assets that replace the businesses, properties or and/or assets that ~~were~~ are the subject of such Asset ~~Sale~~ Disposition, with any such investment made by way of a capital or ~~in properties or assets~~ other lease valued at the present value of the minimum amount of payments under such lease (as reasonably determined by the Issuer); provided, however, that a binding agreement shall be treated as a permitted application of Applicable Proceeds from the date of such commitment with the good faith expectation that an amount equal to Applicable Proceeds will be ~~used~~ applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in ~~a Related Business or (2) acquire~~ the ~~Capital Stock of a Person~~ event that ~~becomes a~~ any Acceptable Commitment is later cancelled or terminated for any reason before such amount is applied in connection therewith, the Issuer or such Restricted Subsidiary as enters into another Acceptable Commitment (a ~~result of the acquisition~~ “Second Commitment”) within 180 days of such ~~Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business~~cancellation or termination; or (Ciii) a any combination of ~~prepayment~~ the foregoing; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to this Section 3.5, the Issuer or the applicable Restricted Subsidiaries may apply such Applicable Proceeds temporarily to reduce Indebtedness (including under the Credit Facilities) or otherwise apply such Applicable Proceeds in any manner not prohibited by this Indenture, and (2) the Issuer (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Applicable Proceeds attributable to any given Asset Disposition (provided that such investment ~~permitted by clauses (A~~shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (B)b) above with respect to such Asset Disposition. (b) ~~Any Net Available Cash not applied within 270~~ If, with respect to any Asset Disposition, at the expiration of the Proceeds Application Period with respect to such Asset Disposition, there remains Applicable Proceeds in excess of the greater of (i) $500.0 million or 20.0% of LTM EBITDA, in the case of a single transaction or a series of related transactions, or (ii) $1,000.0 million or 40.0% of LTM EBITDA aggregate amount in any fiscal year (in the cases of clauses (i) and (ii), such amount of Applicable Proceeds that are less than or equal to $500.0 million or 20.0% of LTM EBITDA or $1,000.0 million or 40.0% of LTM EBITDA, as applicable, “Declined Excess Proceeds,” and such amount of Applicable Proceeds that are in excess of the greater of $500.0 million or 20.0% of LTM EBITDA or $1,000.0 million or 40.0% of LTM EBITDA, as applicable, “Excess Proceeds”), then subject to the limitations with respect to Foreign Dispositions set forth below, the Issuer shall make an offer (an “Asset Disposition Offer”) no later than ten business days after the ~~consummation~~ expiration of ~~an Asset Sale as provided in clauses (A)~~the Proceeds Application Period to all Holders of Notes and, ~~(B) or (C)~~ if required by the terms of ~~paragraph (a) above will be deemed~~ any Pari Passu Indebtedness, to ~~constitute "Excess Proceeds." When~~ all holders of such Pari Passu Indebtedness, to purchase the ~~aggregate~~ maximum principal amount of ~~Excess Proceeds exceeds $5.0 million~~such Notes and Pari Passu Indebtedness, ~~the Company will be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase~~as appropriate, on a pro rata ~~basis the principal amount~~ basis, that may be purchased out of ~~Notes equal in amount to the~~ such Excess ~~Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount")~~Proceeds, if any, at ~~a purchase price~~ an offer price, in the case of the Notes, in cash in an amount equal to 100% of the principal amount thereof (or in the event such other Indebtedness was issued with original issue discount, 100% of the accreted value thereof), plus accrued and unpaid ~~interest and Liquidated Damages thereon~~ interest, if any (or such lesser price with respect to Pari Passu Indebtedness, if any, as may be provided by the terms of such other Indebtedness), to, but not including, the date fixed for the closing of ~~purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date)~~such offer, in accordance with the procedures set forth in this ~~Indenture~~Indenture and the agreement governing the Pari Passu Indebtedness, as applicable, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. Notices of an Asset Disposition Offer shall be sent by first class mail or sent electronically, at least 10 days but not more than 60 days before the purchase date to each Holder of the Notes at such Holder’s registered address or otherwise in accordance with the ~~following standards:~~applicable procedures of DTC. The Issuer may satisfy the foregoing obligation with respect to the Applicable Proceeds by making an Asset Disposition Offer prior to the expiration of the Proceeds Application Period (the “Advance Offer”) with respect to all or a part of the Applicable Proceeds (the “Advance Portion”) in advance of being required to do so by this Indenture. (ic) To the extent that the aggregate amount (or accreted value, as applicable) of Notes and, if applicable, any other Pari Passu Indebtedness validly tendered or otherwise surrendered in connection with an Asset Disposition Offer made with Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) is less than the amount offered in an Asset Disposition Offer, the Issuer may include any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) in Declined Excess Proceeds, and use such Declined Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of the Notes ~~surrendered by Holders thereof~~ or, if applicable, Pari Passu Indebtedness validly tendered pursuant to any Asset Disposition Offer exceeds the amount of Excess ~~Proceeds~~Proceeds (or, in the case of an Advance Offer, the ~~Trustee~~ Advance Portion), the Issuer shall ~~select~~ allocate the Excess Proceeds among the Notes and Pari Passu Indebtedness to be purchased on a pro rata ~~basis, based~~ basis on the ~~principal amount~~ basis of ~~Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If~~ the aggregate principal amount (or accreted value, as applicable) of tendered Notes tendered pursuant to such Asset 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 (subject to the and Pari Passu Indebtedness; provided that no Notes or other ~~provisions of this Indenture)~~Pari Passu Indebtedness will be selected and purchased in an unauthorized denomination. Upon completion of an any Asset ~~Sale~~ Disposition Offer, the amount of Applicable Proceeds and Excess Proceeds ~~then~~ shall be reset at zero. Additionally, the Issuer may, at its option, make an Asset Disposition Offer using proceeds from any Asset Disposition at any time after the consummation of such Asset Disposition. Upon consummation or expiration of any Asset Disposition Offer, any remaining Net Available Cash shall not be deemed Excess Proceeds and the Issuer may use such Net Available Cash for any purpose not prohibited by this Indenture. (d) To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than U.S. Dollars, the amount thereof payable in respect of the Notes shall not exceed the net amount of funds in U.S. Dollars that is actually received by the Issuer upon converting such portion into U.S. Dollars. (e) Notwithstanding any other provisions of this Section 3.5, (i) to the extent that any of or all the Net Available Cash of any Asset Disposition received or deemed to be received by a Foreign Subsidiary (a “Foreign Disposition”) is (x) prohibited or delayed by applicable local law, (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous organizational or administrative impediments from being repatriated to the United States or Canada, the portion of such Net Available Cash so affected will not be required to be ~~otherwise~~ applied in ~~accordance~~ compliance with this ~~covenant shall~~ Section 3.5, and such amounts may be ~~reset~~ retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law, documents or agreements will not permit repatriation to ~~zero~~the United States or Canada (the Issuer hereby agreeing to use reasonable efforts (as determined in the Issuer’s reasonable business judgment) to otherwise cause the applicable Foreign Subsidiary to within one year following the date on which the respective payment would otherwise have been required, ~~subject~~ promptly take all commercially reasonable actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation), and if within one year following the date on which the respective payment would otherwise have been required, such repatriation of any ~~subsequent Asset Sale~~of such affected Net Available Cash is permitted under the applicable local law, applicable organizational impediments or other impediment, such repatriation will be promptly effected and the amount of such repatriated Net Available Cash will be promptly (and in any event not later than five (5) Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) in compliance with this Section 3.5 and (ii) to the extent that the Issuer has determined in good faith that repatriation of any of or all the Net Available Cash of any Foreign Disposition would have an adverse Tax consequence (which for the avoidance of doubt, includes, but is not limited to, any repatriation whereby doing so the Issuer, any of its Subsidiaries, any Parent Entity, or any of their respective affiliates and/or equity owners would incur a Tax liability, including as a result of a dividend or deemed dividend, or a withholding Tax) with respect to such Net Available Cash, the Net Available Cash so affected may be retained by the applicable Foreign Subsidiary. The non-application of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default. (cf) In For the ~~event~~ purposes of ~~the transfer of substantially all (but not all~~Section 3.5(a)(2) ~~of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below~~hereof, the ~~successor corporation~~ following shall be deemed to ~~have sold~~ be cash: (i) the ~~properties and assets~~ assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the ~~Company~~ Issuer or a Restricted Subsidiary (other than Subordinated Indebtedness of the Issuer, the Co-Issuer or a Guarantor) and ~~its Subsidiaries~~ the release of the Issuer or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition; (ii) securities, notes or other obligations received by the Issuer or any Restricted Subsidiary from the transferee that are converted by the Issuer or such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash and Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within 180 days following the closing of such Asset Disposition; (iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Issuer and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition; (iv) consideration consisting of Indebtedness of the Issuer (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not ~~so transferred for purposes~~ the Issuer or any Restricted Subsidiary; and (v) any Designated Non-Cash Consideration received by the Issuer or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section 3.5 that is at that time outstanding, not to exceed the greater of ~~this covenant,~~ $750.0 million and ~~shall comply~~ 30.0% of LTM EBITDA (with ~~the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition,~~ the fair market value of ~~such properties~~ each item of Designated Non-Cash Consideration being measured at the time received and ~~assets of the Company or its Subsidiaries deemed~~ without giving effect to ~~be sold shall be deemed to be Net Available Cash for purposes of this covenant~~subsequent changes in value). (dg) ~~If at any time any non-cash consideration received by~~ Upon the ~~Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed~~ commencement of ~~for cash, then such conversion or disposition shall be deemed to constitute~~ an Asset ~~Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million~~Disposition Offer, the ~~Company~~Issuers shall send, or cause to be sent, by first class mail or electronically, a notice to the Trustee ~~at the request~~ and ~~expense of the Company, shall send~~ to each Holder ~~by first-class mail~~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, ~~postage prepaid~~which shall govern the terms of the Asset Disposition Offer, ~~a notice prepared by the Company stating~~shall state: (i1) that an the Asset ~~Sale~~ Disposition Offer is being made pursuant to this Section ~~4.11~~ 3.5 and ~~that~~ that, to the extent lawful, all Notes ~~that are timely~~ properly tendered ~~will~~ and not withdrawn shall be accepted for ~~payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer~~payment (unless prorated); (ii2) the Asset ~~Sale Offer Amount~~Disposition payment amount, the ~~amount of Excess Proceeds that are available to be applied to purchase tendered Notes~~Asset Disposition offered price, and the date on which Notes ~~are to~~ properly tendered and accepted for payment shall be ~~purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date")~~purchased, which date shall be ~~a Business Day no earlier than 30 calendar~~ at least 10 days ~~nor~~ and not later than 60 ~~calendar~~ days ~~subsequent to~~ from the date such notice is ~~mailed~~sent (the “Asset Sale Payment Date”); (~~iii~~3) that any Notes ~~or portions thereof~~ not properly tendered or accepted for payment ~~will~~ shall continue to accrue ~~interest~~interest in accordance with the terms thereof; (iv4) that, unless the ~~Company defaults~~ Issuers default in ~~the payment of the Asset Sale Offer Amount with respect thereto~~making such payment, ~~all~~ any Notes ~~or portions thereof~~ accepted for payment pursuant to the Asset ~~Sale~~ Disposition Offer shall cease to accrue interest ~~from~~ on and after the Asset Sale ~~Purchase~~ Payment Date; (v5) that ~~any Holder~~ Holders electing to have any Notes ~~or portions thereof~~ purchased pursuant to ~~the~~ any Asset ~~Sale~~ Disposition Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.shal

Appears in 1 contract

Sources: Indenture (Restaurant Brands International Limited Partnership)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset ~~Sale unless: (i)~~ Disposition unless the Company or such Restricted Subsidiary receives consideration at the time of such Asset ~~Sale~~ 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 ~~Sale (which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions) involving in excess of $1,000,000)~~ Disposition, and at least 75% of the consideration therefor received ~~therefor~~ by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents. With respect to any Asset Disposition occurring on or after the Issue Date from which the Company or any Restricted Subsidiary receives Net Available Cash, the Company or such Restricted Subsidiary shall: (i) within 360 days after the date such Net Available Cash ~~Equivalents and~~ is received at and to the ~~time~~ extent the Company or such Restricted Subsidiary elects (or is required by the terms of ~~such sale and~~ any Senior Indebtedness) to (iiA) apply an amount equal to ~~100% of the~~ such Net Available Cash ~~from such Asset Sale is applied by~~ to prepay, repay or purchase Senior Indebtedness of the Company (or such Restricted Subsidiary, as in each case owing to a Person other than the ~~case may be) within 270 days from the date of such Asset Sale either: (A) to prepay, repay, redeem or purchase any Indebtedness that by its terms is not subordinate to the Notes~~ Company or any ~~Guarantee and~~Affiliate of the Company, ~~in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and~~ or (B) ~~to: (1) make~~ invest an ~~investment in properties~~ equal amount, or ~~assets that replace~~ the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash amount not so applied ~~within 270 days after the consummation of an Asset Sale as provided in clauses~~ pursuant to clause (A), in Additional Assets (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis the principal amount of Notes equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon to the date of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered including by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion means of an ~~Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied~~ Investment in ~~accordance~~ Additional Assets by a Restricted Subsidiary with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash ~~for purposes of this covenant. (d) If at any time any non-cash consideration~~ received by the Company or ~~any Subsidiary~~ another Restricted Subsidiary) and (ii) apply such excess Net Available Cash (to the extent not applied pursuant to clause (i)) as provided in the following paragraphs of this Section 4.6; provided, however, that in connection with any ~~Asset Sale is converted into~~ prepayment, repayment or ~~sold or otherwise disposed~~ purchase of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made Senior Indebtedness pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; clause (iiA) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Dateabove, the Company or such Restricted Subsidiary shall ~~(i) accept for payment any Notes or portions thereof properly tendered~~ retire such Senior Indebtedness and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or shall cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.the

Appears in 1 contract

Sources: Indenture (Hollywood Entertainment Corp)

Limitation on Sales of Assets and Subsidiary Stock. (a) The ~~Company~~ Issuer shall not, and shall not permit any of its Restricted ~~Subsidiary~~ Subsidiaries to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i1) the ~~Company~~ Issuer or such Restricted ~~Subsidiary~~ Subsidiary, as the case may be, receives consideration ~~at the time~~ (including by way of ~~such Asset Sale~~ relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (~~including as~~ such fair market value to be determined on the ~~value~~ date of ~~all non-cash consideration~~contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset ~~Sale~~ Disposition (~~which fair market value shall be determined~~ including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); (2) in ~~good faith by the Board of Directors for~~ any ~~transaction (~~such Asset Disposition, or series of ~~transactions) involving in excess of $1,000,000) and~~ related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents and is received at the time of such sale and (ii) an amount equal to 100% of the Net Available Cash from such Asset ~~Sale is applied~~ Disposition (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise), together with all other Asset Dispositions since the Issue Date (on a cumulative basis) received by the ~~Company (~~Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; (3) ~~within 270 days~~ the Issuer or any of its Restricted Subsidiaries will apply 100% of the Net Available Cash from ~~the date of such~~ any Asset ~~Sale either~~Disposition: (i) to the extent the Issuer or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness), (A) to prepay, ~~repay, redeem~~ repay or purchase any Indebtedness of a Non-Guarantor Subsidiary or Indebtedness that is secured by ~~its terms is not subordinate~~ a Lien or any Refinancing Indebtedness in respect thereof (in each case, other than Indebtedness owed to the ~~Notes~~ Issuer or any ~~Guarantee~~ Restricted Subsidiary) within 450 days from the later of (1) the date of such Asset Disposition and (2) the receipt of such Net Available Cash (as applicable, the “Asset Disposition Proceeds Application Period”); provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (i), the Issuer or Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be reduced in an amount equal to the principal amount so prepaid, repaid or purchased; or (B) to prepay, repay or purchase Senior Indebtedness; provided that, to the extent the Issuer prepays, repays or purchases Senior Indebtedness pursuant to this clause (B), the Issuer shall equally and ratably reduce Obligations under the Notes as provided under Section 5.7, through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; (ii) to the extent the Issuer or any Restricted Subsidiary, as the case may be, elects to invest in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary) within the Asset Disposition Proceeds Application Period; provided, however, that a binding agreement shall be treated as a permitted application of Net Available Cash from the date of 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 ~~case of~~ 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 ~~Indebtedness under any revolving credit facility, effect~~ Restricted Subsidiary enters into another Acceptable Commitment (a ~~permanent reduction in the availability under such revolving credit facility; and (B~~“Second Commitment”) ~~to: (1) make an investment in properties or assets that replace the properties or assets that were the subject~~ within 180 days of such ~~Asset Sale~~ cancellation or ~~in properties~~ termination; provided, further, that if any Second Commitment is later cancelled or ~~assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of~~ terminated for any reason before such ~~Capital Stock; provided that~~ Net Available Cash is applied, then such ~~Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business~~Net Available Cash shall constitute Excess Proceeds; or (Ciii) a any combination of ~~prepayment~~ the foregoing; provided, however, that, pending the final application of any such Net Available Cash in accordance with Section 3.5(a)(3)(i) or (ii), the Issuer and ~~investment permitted~~ its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise use such Net Available Cash in any manner not prohibited by ~~clauses (A) and (B)~~this Indenture. (b) Any Net Available Cash from Asset Dispositions that is not applied ~~within 270 days after the consummation of an Asset Sale~~ or invested or committed to be applied or invested as provided in ~~clauses (A), (B~~Section 3.5(a) ~~or (C) of paragraph (a) above will~~ shall be deemed to constitute "“Excess Proceeds~~." When~~ ” under this Indenture. On the 451st day after an Asset Disposition or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds under this Indenture exceeds $~~5.0 million~~200,000,000, the ~~Company will~~ Issuer shall within twenty (20) Business Days be required to make an offer (“Asset Disposition Offer”) to an all Holders ~~(an "Asset Sale Offer")~~and, to ~~purchase~~the extent the Issuer elects, ~~on a pro rata basis~~ to the holders of any other outstanding Senior Indebtedness, to purchase the maximum principal amount of Notes ~~equal in amount~~ and any such Senior Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess ~~Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount")~~Proceeds, at ~~a purchase~~ an offer price ~~in cash in an amount~~ equal to 100% of the principal amount ~~thereof~~ of the Notes and any such Senior Indebtedness, in each case, plus accrued and unpaid ~~interest and Liquidated Damages thereon to~~ interest, if any, to, but not including, the date of ~~purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date)~~purchase, in accordance with the procedures set forth in this ~~Indenture~~Indenture or the agreements governing any such Senior Indebtedness, as applicable, and, with respect to the Notes, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. The Issuer shall deliver notice of such Asset Disposition Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder at the address of such Holder appearing in the security register or otherwise in accordance with the ~~following standards:~~applicable procedures of DTC, describing the transaction or transactions that constitute the Asset Disposition and offering to repurchase the Notes for the specified purchase price on the date specified in the notice, which date shall be no earlier than 15 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by this Indenture and described in such notice. The Issuer may satisfy the foregoing obligation with respect to such Net Available Cash from an Asset Disposition by making an Asset Disposition Offer prior to the expiration of the Asset Disposition Proceeds Application Period (the “Advance Offer”) with respect to all or a part of the Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Section 3.5. (ic) To the extent that the aggregate amount of Notes and any such Senior Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) for any purpose not prohibited by this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders ~~thereof~~ and other Senior Indebtedness surrendered by holders or lenders thereof, collectively, exceeds the amount of Excess ~~Proceeds~~Proceeds (or, in the case of an Advance Offer, the ~~Trustee~~ Advance Portion), the Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall ~~select~~ be allocated among the Notes and any such Senior Indebtedness to be purchased on a pro rata ~~basis, based~~ basis on the ~~principal amount~~ basis of ~~Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If~~ the aggregate principal amount of tendered Notes ~~tendered pursuant to~~ and any such ~~Asset 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 (subject to the~~ Senior Indebtedness; provided that no Notes or other ~~provisions of this Indenture)~~Senior Indebtedness shall be selected and purchased in an unauthorized denomination. Upon completion of an any Asset ~~Sale~~ Disposition Offer, the amount of Excess Proceeds ~~then~~ will be reset at zero (regardless of whether there are any remaining Excess Proceeds upon such completion), and in the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such Advance Offer shall be excluded in subsequent calculations of Excess Proceeds. Additionally, upon consummation or expiration of any Advance Offer, any remaining Net Available Cash shall not be deemed Excess Proceeds and the Issuer may use such Net Available Cash for any purpose not otherwise prohibited under this Indenture. (d) To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than U.S. dollars, the amount thereof payable in respect of the Notes shall not exceed the net amount of funds in U.S. dollars that is actually received by the Issuer upon converting such portion into U.S. dollars. (e) Notwithstanding any other provisions of this Section 3.5, (i) to the extent that any of or all the Net Available Cash of any Asset Disposition by a Foreign Subsidiary (a “Foreign Disposition”) is prohibited or delayed by applicable local law, or would give rise to a violation of a third-party agreement of the Issuer or any Restricted Subsidiary, from being repatriated to the United States, the portion of such Net Available Cash so affected will not be required to be ~~otherwise~~ applied in ~~accordance~~ compliance with this ~~covenant shall~~ Section 3.5, and such amounts may be ~~reset~~ retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law or third-party agreement will not permit repatriation to ~~zero~~the United States (the Issuer hereby agreeing to use reasonable efforts (as determined in the Issuer’s reasonable business judgment) to otherwise cause the applicable Foreign Subsidiary to within one year following the date on which the respective payment would otherwise have been required, ~~subject~~ to promptly take all actions reasonably required by the applicable local law or third-party agreement to permit such repatriation), and if within one year following the date on which the respective payment would otherwise have been required, such repatriation of any ~~subsequent Asset Sale. (c) In the event~~ of ~~the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction~~ such affected Net Available Cash is permitted under the applicable local law or third-party agreement, such repatriation will be promptly effected and such repatriated Net Available Cash will be promptly (and in any event not later than five (5) Business Days after such repatriation could be made) applied (net of additional Taxes payable or reserved against as a result thereof) in compliance with this Section ~~5.01 below,~~ 3.5 and (ii) to the ~~successor corporation shall be deemed to~~ extent that the Issuer has determined in good faith that repatriation of any of or all the Net Available Cash of any Foreign Disposition would have ~~sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant~~ an adverse Tax cost consequence with respect to such Net Available Cash (which for the avoidance of doubt, includes, but is not limited to, any prepayment whereby doing so the Issuer, any Restricted Subsidiary or any of their respective affiliates would incur a tax liability, including a tax dividend, deemed ~~sale~~ dividend pursuant to Code Section 956 or a withholding tax), the Net Available Cash so affected may be retained by the applicable Foreign Subsidiary. The non-application of any prepayment amounts as ~~if it were~~ a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default. (f) For the purposes of Section 3.5(a)(2), the following will be deemed to be cash: (i) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Issuer or a Restricted Subsidiary (other than Subordinated Indebtedness of the Issuer or a Guarantor) and the release of the Issuer or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset ~~Sale. In addition~~Disposition; (ii) securities, notes or other obligations received by the Issuer or any Restricted Subsidiary of the Issuer from the transferee that are converted by the Issuer or such Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Disposition; (iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Issuer and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition; (iv) consideration consisting of Indebtedness of the Issuer (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Issuer or any Restricted Subsidiary; and (v) any Designated Non-Cash Consideration received by the Issuer or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section 3.5 that is at that time outstanding, not to exceed the greater of $650,000,000 and 3.0% of Total Assets (with the fair market value of ~~such properties~~ each item of Designated Non-Cash Consideration being measured at the time received and ~~assets of the Company or its Subsidiaries deemed~~ without giving effect to ~~be sold shall be deemed to be Net Available Cash for purposes of this covenant~~subsequent changes in value). (dg) ~~If at any time any non-cash consideration received by~~ Upon the ~~Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed~~ commencement of ~~for cash, then such conversion or disposition shall be deemed to constitute~~ an Asset ~~Sale hereunder~~ Disposition Offer, the Issuer shall send, or cause to be sent, electronically or by first class mail, a notice to the Trustee and ~~the Net Available Cash thereof shall be applied~~ to each Holder at its registered address, in accordance with ~~this covenant. (e) Within 30 calendar days after~~ the ~~date~~ applicable procedures of DTC. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the ~~amount of Excess Proceeds exceeds $5.0 million~~Asset Disposition Offer. Any Asset Disposition Offer shall be made to all Holders. The notice, which shall govern the ~~Company, or the Trustee at the request and expense~~ terms of the ~~Company~~Asset Disposition Offer, shall ~~send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating~~state: (i1) that an the Asset ~~Sale~~ Disposition Offer is being made pursuant to this Section ~~4.11~~ 3.5 and ~~that~~ that, to the extent lawful, all Notes ~~that are timely~~ tendered ~~will~~ and not withdrawn shall be accepted for ~~payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer~~payment (unless prorated); (ii2) the Asset ~~Sale Offer Amount~~Disposition payment amount, the ~~amount of Excess Proceeds that are available to be applied to purchase tendered Notes~~Asset Disposition offered price, and the date on which Notes ~~are to~~ tendered and accepted for payment shall be ~~purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date")~~purchased, which date shall be ~~a Business Day no earlier than 30 calendar~~ at least 15 days ~~nor~~ and not later than 60 ~~calendar~~ days ~~subsequent to~~ from the date such ~~notice~~ notices is ~~mailed~~mailed (the “Asset Sale Payment Date”); (~~iii~~3) that any Notes ~~or portions thereof~~ not tendered or accepted for payment will remain outstanding and continue to accrue ~~interest~~interest in accordance with the terms thereof; (iv4) that, unless the ~~Company~~ Issuer defaults in ~~the payment of the Asset Sale Offer Amount with respect thereto~~making such payment, ~~all~~ any Notes ~~or portions thereof~~ accepted for payment pursuant to the Asset ~~Sale~~ Disposition Offer shall cease to accrue interest ~~from~~ on and after the Asset Sale ~~Purchase~~ Payment Date; (v5) that ~~any Holder~~ Holders electing to have any Notes ~~or portions thereof~~ purchased pursuant to ~~the~~ any Asset ~~Sale~~ Disposition Offer ~~will~~ shall be required to surrender ~~such~~ the Notes, with the form entitled "“Option of Holder to Elect Purchase" ” on the reverse of ~~such Notes completed~~the Note completed (subject to any contrary procedures of DTC with respect to Global Notes), to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale ~~Purchase~~ Payment Date; (vi6) that ~~any Holder shall~~ Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such ~~election if~~ Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day ~~preceding~~ prior to the expiration date of the Asset Sale ~~Purchase~~ Payment Date, a telegram, facsimile transmission or ~~letter,~~ letter setting forth the name of the ~~Holder~~Holder of the Notes, the principal amount of Notes ~~delivered~~ tendered for purchase, and a statement that such Holder is withdrawing ~~such Holder's~~ its tendered Notes and its election to have such Notes ~~or portions thereof purchased pursuant to the Asset Sale Offer~~purchased; (~~vii~~7) that ~~any Holder electing to have~~ if the aggregate principal amount of Notes ~~purchased pursuant to~~ surrendered by Holders exceeds the Asset ~~Sale Offer must specify~~ Disposition payment amount, the ~~principal amount~~ Issuer shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Issuer so that ~~is being tendered for purchase, which principal amount must be~~ only Notes in denominations of $2,000 or integral multiples of $1,000 ~~or an integral multiple thereof,~~remain outstanding after purchase); (~~viii) if Certificated Notes have been issued hereunder,~~ 8) that ~~any Holder of Certificated Notes~~ Holders whose ~~Certificated~~ Notes are being purchased only in part will be issued new ~~Certificated~~ Notes and such new Notes will be equal in principal amount to the unpurchased portion of the ~~Certificated Note or~~ Notes ~~surrendered, which~~ surrendered (with the unpurchased portion ~~will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that~~ of the ~~Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof~~ Notes required to be equal to ~~the unpurchased portion~~ at least $2,000 or any integral multiple of ~~such Global Note~~$1,000 in excess of $2,000); and (x9) ~~any~~ the other ~~information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to~~ instructions, as determined by the Issuer, consistent with this Section ~~4.11~~3.5, that a Holder must follow. (fh) On If the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer Date is on or ~~as soon as practicable~~ after ~~the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.~~a

Appears in 1 contract

Sources: Indenture (Community Health Systems Inc)

Limitation on Sales of Assets and Subsidiary Stock. (a1) The ~~Company shall~~ Borrower will not, and ~~shall~~ will not permit any of its Restricted ~~Subsidiary~~ Subsidiaries to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition in excess of the Asset Disposition Threshold Amount unless: (ia) the ~~Company~~ Borrower or such Restricted ~~Subsidiary~~ Subsidiary, as the case may be, receives consideration ~~at the time~~ (including by way of ~~such Asset Sale~~ relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the ~~fair market value~~ Fair Market Value (~~including as~~ such Fair Market Value to be determined on the ~~value~~ date of ~~all non-cash consideration~~contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset ~~Sale~~ Disposition; and (~~which fair market value shall be determined in good faith by the Board of Directors for~~ b) with respect to (x) any such individual Asset Disposition transaction ~~(or series of transactions) involving~~ with respect to assets having a Fair Market Value in excess of ~~$1,000,000~~US$5,000,000 or (y) any such Asset Dispositions transactions with respect to assets having a Fair Market Value in excess of US$10,000,000, for all such transactions on an aggregate basis in any Fiscal Year, in each case of (x) and (y), at least 75% of the consideration from such Asset Dispositions (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received ~~therefor~~ by the ~~Company~~ Borrower or such Restricted Subsidiary pursuant to this clause (b) since the Closing Date (on a cumulative basis), as the case may be, is in the form of cash or Cash Equivalents ~~and is received at~~ (as determined in accordance with the ~~time~~ provisions of ~~such sale~~ this Section 9.8 below); and (iic) an amount equal to 100% of the Net Available Cash from such Asset ~~Sale~~ Disposition of the Borrower and the Subsidiary Guarantors is applied ~~by the Company~~ and/or reinvested as (or such Restricted Subsidiary, as the case may be) within 270 days from the date of such Asset Sale either: (A) to prepay, repay, redeem or purchase any Indebtedness that by its terms is not subordinate and to the ~~Notes or any Guarantee and~~extent) required by Section 1.1(2); provided that, in pending the ~~case~~ final application of any such Net Available Cash in accordance with Section 1.1(2), the Borrower and its Restricted Subsidiaries may temporarily reduce Indebtedness ~~under~~ or otherwise use such Net Available Cash in any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and (B) to: (1) make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business ormanner not prohibited by this Agreement. (2) ~~acquire~~ To the ~~Capital Stock~~ extent that any portion of Net Available Cash payable in respect of the Loans is denominated in a ~~Person~~ currency other than Canadian dollars, the amount thereof payable in respect of the Loans shall not exceed the net amount of funds in Canadian dollars that ~~becomes~~ is actually received by the Borrower upon converting such portion into Canadian dollars. (3) For the purposes of clause (1)(b) of this Section 9.8, the following will be deemed to be cash: (a) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Borrower or a Restricted Subsidiary (other than Subordinated Indebtedness of the Borrower or a Guarantor or Indebtedness or liabilities incurred in contemplation of such Asset Disposition) and the release of the Borrower or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition; (a) securities, notes or other obligations received by the Borrower or any Restricted Subsidiary of the Borrower from the transferee (including earn-outs or similar obligations) that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Disposition, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Disposition; (b) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the ~~acquisition~~ extent that the Borrower and each other Restricted Subsidiary are released from any Guarantee of payment of such ~~Capital Stock; provided that~~ Indebtedness in connection with such ~~Person is, at~~ Asset Disposition; (c) consideration consisting of Indebtedness of the ~~time it becomes a~~ Borrower (other than Subordinated Indebtedness) received after the Closing Date from Persons who are not the Borrower or any Restricted Subsidiary~~, engaged in a Related Business; or~~; (Cd) ~~a combination~~ the amount of ~~prepayment and investment permitted by clauses~~ any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Asset Disposition; (Ae) any Designated Non-Cash Consideration received in respect of such Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (d) and ~~(B)~~that is at that time outstanding, not in excess of US$15,000,000. (b4) ~~Any Net Available Cash not applied within 270 days after~~ Notwithstanding any provision of this Agreement (including any permitted asset dispositions pursuant to this section or the ~~consummation~~ definition of an “Asset ~~Sale as provided in clauses (A~~Disposition”), ~~(B)~~ in no event shall a disposition or ~~(C)~~ decommissioning of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis the principal amount of Notes equal in amount any assets related to the ~~Excess Proceeds~~ Project (~~and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in~~ including an ~~amount equal to 100%~~ indirect disposition of the ~~principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon~~ Project pursuant to a distribution of Capital Stock of a Subsidiary of the ~~date~~ Borrower or any other indirect disposition of ~~purchase~~ the Project) be permitted in each case that could result in the Project (~~subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date),~~ i) no longer operating in accordance with the ~~procedures set forth~~ Construction Budget and Schedule and the Operating Budget in ~~this Indenture,~~ all material respects and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 Prudent Industry Practice or ~~integral multiples thereof shall be purchased.~~ (ii) ~~If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less~~ being owned by any Person other than the ~~Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion~~ Borrower or a wholly owned Subsidiary of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset SaleBorrower. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Credit Agreement (Algoma Steel Group Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted ~~Subsidiary~~ Subsidiaries to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale 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 Sale (which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions) involving in excess of $1,000,000) and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents and is received at the time of such sale and (ii) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied by the Company (or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); (2) in any such Asset Disposition (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis), (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and (3) within ~~270~~ 455 days from the later of (A) the date of such Asset Sale either: (A) to prepay, repay, redeem or purchase any Indebtedness that by its terms is not subordinate to the Notes or any Guarantee and, in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and Disposition and (B) ~~to: (1) make an investment in properties or assets that replace~~ the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result receipt of the acquisition of such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash ~~not applied within 270 days after~~ from such Asset Disposition (as may be extended by an Acceptable Commitment or a Second Commitment as set forth below, the ~~consummation of an Asset Sale as provided in clauses (A~~“Proceeds Application Period”), (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis the principal amount of Notes equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in an amount equal to 100% of ~~the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon~~ such Net Available Cash is applied, to the ~~date of~~ extent the Company or any Restricted Subsidiary, as the case may be, elects: (i) (a) to reduce, prepay, repay or purchase any Secured Indebtedness, including Indebtedness under the Credit Agreement (~~subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date~~or any Refinancing Indebtedness in respect thereof), (b) to reduce, prepay, repay or purchase Pari Passu Indebtedness; provided, that the Company ratably repay the Notes, (c) to make an offer (in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer below for ~~general corporate purposes (subject to the other provisions of this Indenture). Upon completion of~~ an Asset ~~Sale~~ Disposition Offer), the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries redeem Notes as ~~an entirety to a Person in a transaction permitted~~ described under Section ~~5.01 below~~5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or ~~its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant.~~ (d) ~~If at~~ to reduce, prepay, repay or purchase any ~~time any non~~Indebtedness of a Non-~~cash consideration received by~~ Guarantor (in each case, other than Indebtedness owed to the Company or any ~~Subsidiary~~ Restricted Subsidiary); provided, however, that, in connection with any ~~Asset Sale is converted into~~ reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (i), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of ~~for cash, then~~ in connection with 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~~Disposition constituted “borrowing base assets”) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults reduced in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the principal amount so reduced, prepaid, repaid or purchased; (a) to invest (including capital expenditures) in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary); or (b) to invest (including capital expenditures) in any one or more businesses (provided that any such business will be a Restricted Subsidiary), properties or assets that replace the businesses, properties and/or assets that are the subject of such Asset ~~Sale Offer Amount~~ Disposition, with any such investment made by way of a capital or other lease valued at the present value of the minimum amount of payments under such lease (as reasonably determined by the Company); provided, however, that a binding agreement shall be treated as a permitted application of Net Available Cash from the date of such commitment with the good faith expectation that an amount equal to Net Available Cash will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in ~~respect~~ the event of ~~all Notes~~ any Acceptable Commitment is later cancelled or ~~portions thereof so accepted; and (iii) deliver~~terminated for any reason before such amount is applied in connection therewith, ~~or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to~~ the Company ~~and accepted~~ or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided, further, that if any Second Commitment is later cancelled or terminated for ~~payment. Subject to the provisions of Section 4.01~~any reason before such amount is applied, ~~the Paying Agent~~ then such Net Available Cash shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.constitute Excess Proceeds; or

Appears in 1 contract

Sources: Indenture (Dun & Bradstreet Holdings, Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted ~~Subsidiary~~ Subsidiaries to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale 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 Sale (which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions) involving in excess of $1,000,000) and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents and is received at the time of such sale and (ii) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied by the Company (Issuer or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Issuer, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); (2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), with a purchase price in excess of (x) prior to the Conversion Date, $150 million and (y) after the Conversion Date, the greater of $150.0 million and 5.5% of LTM EBITDA, at least 75% of the consideration from such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis), (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents (which determination may be made by the Issuer, at its option, either (x) on the date of contractually agreeing to such Asset Disposition or (y) at the time the Asset Disposition is completed); and (3) within ~~270~~ 365 days from the later of (A) the date of such Asset Sale either: (A) to prepay, repay, redeem or purchase any Indebtedness that by its terms is not subordinate to the Notes or any Guarantee and, in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; and Disposition and (B) ~~to: (1) make an investment in properties or assets that replace~~ the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result receipt of the acquisition of such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B). (b) Any Net Available Cash ~~not applied within 270 days after~~ from such Asset Disposition (as may be extended by an Acceptable Commitment as set forth below, the ~~consummation of an Asset Sale as provided in clauses (A~~“Proceeds Application Period”), (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis the principal amount of Notes equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in an amount equal to ~~100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon~~ such Net Available Cash is applied, to the ~~date of purchase~~ extent the Issuer or any Restricted Subsidiary, as the case may be, elects: (~~subject~~ i) (a) to the ~~right~~ extent such Net Available Cash are from an Asset Disposition of ~~each Holder of record on~~ Collateral (w) to reduce, prepay, repay or purchase any First Lien Obligations, including Indebtedness under the ~~relevant Record Date to receive interest due on~~ Credit Agreements or the ~~relevant Interest Payment Date~~First Lien Notes (or any Refinancing Indebtedness in respect thereof), (x) to reduce, prepay, repay or purchase any Second Lien Obligations other than Second Lien Notes Obligations (or any Refinancing Indebtedness in respect thereof); provided that, if the Issuer shall so reduce, repay or repurchase such Second Lien Obligations, the Issuer ratably offer to repurchase Notes (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer or Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in ~~this Indenture~~privately negotiated transactions, ~~and~~ (y) to make an offer (in accordance with the ~~following standards:~~ procedures set forth below for a Collateral Asset Disposition Offer or Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, or (iz) ~~If the aggregate principal amount~~ to reduce, prepay, repay or purchase any Indebtedness of ~~Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds~~a Non-Guarantor (in each case, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less other than ~~the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject~~ Indebtedness owed to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company Issuer or any ~~Subsidiary~~ Restricted Subsidiary); provided, however, that, in connection with any ~~Asset Sale is converted into~~ reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (a), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of ~~for cash, then~~ in connection with 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~~Disposition constituted “borrowing base assets”) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults reduced in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the principal amount so reduced, prepaid, repaid or purchased; (b) to the extent such Net Available Cash is from an Asset ~~Sale~~ Disposition that does not constitute Collateral, (v) to reduce, prepay, repay or purchase any Indebtedness secured by a Lien on such asset, (w) to reduce, prepay, repay or purchase any First Lien Obligations, including Indebtedness under the Credit Agreements or the First Lien Notes (or any Refinancing Indebtedness in respect thereof) (x) to reduce, prepay, repay or purchase other senior Indebtedness; provided, that the Issuer ratably offer to repurchase Notes (in accordance with the procedures set forth below for a Collateral Asset Disposition Offer ~~Amount~~ or Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, (y) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, or (z) to reduce, prepay, repay or purchase any Indebtedness of a Non-Guarantor (in each case, other than Indebtedness owed to the Issuer or any Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (b), the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of ~~all Notes~~ any asset-based credit facility to the extent the assets sold or ~~portions thereof so accepted; and (iii~~otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) ~~deliver, or cause~~ to be ~~delivered,~~ reduced in an amount equal to the ~~Trustee~~ principal amount so reduced, prepaid, repaid or purchased; (a) to invest (including capital expenditures) in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary); or (b) to invest (including capital expenditures) in any one or more businesses (provided that any such business will be a Restricted Subsidiary), properties or assets that replace the ~~Notes so accepted together~~ businesses, properties and/or assets that are the subject of such Asset Disposition, with ~~an Officers' Certificate listing~~ any such investment made by way of a capital or other lease valued at the ~~Notes or portions thereof tendered~~ present value of the minimum amount of payments under such lease (as reasonably determined by the Issuer); provided, that the assets (including Capital Stock) acquired with the Net Available Cash of a disposition of Collateral are pledged as Collateral to the ~~Company and accepted~~ extent required under the Security Documents; provided, further, that a binding agreement shall be treated as a permitted application of Net Available Cash from the date of such commitment with the good faith expectation that an amount equal to Net Available Cash will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event of any Acceptable Commitment is later cancelled or terminated for ~~payment. Subject to the provisions of Section 4.01~~any reason before such amount is applied in connection therewith, ~~the Paying Agent~~ then such Applicable Proceeds shall ~~promptly send by first class mail~~constitute Collateral Excess Proceeds or Excess Proceeds, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the ~~Paying Agent.~~case may be; or

Appears in 1 contract

Sources: Indenture (Frontier Communications Corp)

Limitation on Sales of Assets and Subsidiary Stock. (a) ~~The Company shall not,~~ In the event and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Sale unless: (i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the ~~fair market value (including as to~~ extent that the value of all non-cash consideration) of the shares and assets subject to such Asset Sale (which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions) involving in excess of $1,000,000) and at least 75% of the consideration Net Available Cash received ~~therefor~~ by the Company or ~~such~~ any Restricted Subsidiary is from one or more Asset Dispositions (other than the Scheduled Asset Dispositions) occurring on or after the Issue Date in any period of 12 consecutive months exceeds the ~~form~~ greater of ~~cash or Cash Equivalents~~ $10 million and ~~is received at~~ 10% of Adjusted Consolidated Assets as of the ~~time~~ beginning of such ~~sale and~~ 12-month period, then the Company shall (iii) no later than 360 days after the date such Net Available Cash so received exceeds such $10.0 million or 10% of Adjusted Consolidated Assets (A) apply an amount equal to ~~100% of the~~ such excess Net Available Cash ~~from such Asset Sale is applied by the Company (~~to repay Senior Indebtedness or ~~such~~ Indebtedness of any Restricted Subsidiary, as in each case owing to a Person other than the ~~case may be~~Company or any Affiliate of the Company or (B) ~~within 270 days from~~ invest or commit to invest an equal amount, or the ~~date of such Asset Sale either:~~ amount not so applied pursuant to clause (A~~) to prepay~~), ~~repay~~in Additional Assets; PROVIDED, ~~redeem or purchase any Indebtedness~~ HOWEVER, that ~~by its terms is not subordinate to the Notes or any Guarantee and,~~ in the case of any commitment to invest, such ~~Indebtedness under~~ investment must be made within six months thereafter, and any ~~revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility~~amount not so invested shall be treated as Excess Proceeds (as defined below); and (B) to: (1) make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (~~B). (b~~ii) ~~Any~~ apply such excess Net Available Cash (to the extent not applied ~~within 270 days after the consummation of an Asset Sale~~ pursuant to clause (i)) as provided in ~~clauses (A), (B) or (C)~~ the following paragraphs of ~~paragraph (a) above will~~ this Section 4.06. The amount of such excess Net Available Cash required to be ~~deemed to~~ applied during the applicable period and not applied as so required by the end of such period shall constitute "Excess Proceeds.~~" When~~ " (i) If, as of the first day of any calendar month, the aggregate amount of Excess Proceeds ~~exceeds~~ not theretofore subject to an Excess Proceeds Offer (as defined below) totals at least $~~5.0~~ 10.0 million, the Company ~~will be required to~~ must, not later than the fifteenth Business Day of such month, make an offer ~~to an Holders~~ (an "~~Asset Sale~~ Excess Proceeds Offer"), ) to ~~purchase,~~ purchase from the Holders on a pro rata basis ~~the~~ an aggregate principal amount of ~~Notes~~ Securities equal ~~in amount~~ to the Excess Proceeds (~~and not just~~ rounded down to the ~~amount thereof that exceeds~~ nearest multiple of $~~5.0 million~~1,000) ~~(the "Asset Sale Offer Amount")~~on such date, at a purchase price ~~in cash in an amount~~ equal to 100% of the principal amount ~~thereof plus~~ of such Securities, plus, in each case, accrued ~~and unpaid~~ interest ~~and Liquidated Damages thereon~~ (if any) to the date of purchase (~~subject to~~ the ~~right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date~~"Excess Proceeds Payment"), in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) ~~If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the~~ The Company ~~may use~~ shall commence any ~~remaining~~ Excess Proceeds ~~following the completion of the Asset Sale~~ Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to ~~such deemed sale as if it were an Asset Sale. In addition,~~ the ~~fair market value of such properties~~ Securities by mailing a notice to the Trustee and ~~assets of~~ each Holder stating: (A) that the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section ~~4.11~~ 4.06 and that all ~~Notes that are timely~~ Securities validly tendered will be accepted for ~~payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer;~~ payment on a pro rata basis; (iiB) the ~~Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to~~ purchase ~~tendered Notes,~~ price and the date ~~Notes are to be purchased pursuant to the Asset Sale Offer~~ of purchase (~~the "Asset Sale Purchase Date"),~~ which ~~date~~ shall be a Business Day no earlier than 30 ~~calendar~~ days nor later than 60 ~~calendar~~ days ~~subsequent to~~ from the date such notice is mailed; ) (~~iii~~the "Excess Proceeds Payment Date"); (C) that any ~~Notes or portions thereof~~ Security not tendered ~~or accepted for payment~~ will continue to accrue ~~interest;~~ interest pursuant to its terms; (ivD) that, unless the Company defaults in the payment of the ~~Asset Sale Offer Amount with respect thereto~~Excess Proceeds Payment, ~~all Notes or portions thereof~~ any Security accepted for payment pursuant to the ~~Asset Sale~~ Excess Proceeds Offer shall cease to accrue interest ~~from~~ on and after the ~~Asset Sale Purchase~~ Excess Proceeds Payment Date; ; (vE) that ~~any Holder~~ Holders electing to have ~~any Notes or portions thereof~~ a Security purchased pursuant to the ~~Asset Sale~~ Excess Proceeds Offer will be required to surrender ~~such Notes~~the Security, together with the form entitled "Option of Holder to Elect Purchase" on the reverse side of ~~such Notes~~ the Security completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day immediately preceding the ~~Asset Sale Purchase~~ Excess Proceeds Payment Date; ; (viF) that ~~any Holder shall~~ Holders will be entitled to withdraw ~~such~~ their election if the Paying Agent receives, not later than the close of business on the ~~second~~ third Business Day immediately preceding the ~~Asset Sale Purchase~~ Excess Proceeds Payment Date, a facsimile transmission or ~~letter,~~ letter setting forth the name of ~~the~~ such Holder, the principal amount of ~~Notes~~ Securities delivered for ~~purchase,~~ purchase and a statement that such Holder is withdrawing ~~such Holder's~~ his election to have such ~~Notes or portions thereof purchased pursuant to the Asset Sale Offer;~~ Securities purchased; and (~~vii~~G) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes Holders whose ~~Certificated Notes~~ Securities are being purchased only in part will be issued new ~~Certificated Notes~~ Securities equal in principal amount to the unpurchased portion of the ~~Certificated Note or Notes~~ Securities surrendered; PROVIDED, ~~which unpurchased portion will~~ HOWEVER, that each Security purchased and each new Security issued shall be ~~equal~~ in a principal amount to of $1,000 or an integral ~~multiple~~ multiples thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (fiii) On the ~~Asset Sale~~ Excess Proceeds Payment Date, the Company shall (iA) accept for payment ~~any Notes~~ on a pro rata basis Securities or portions thereof ~~properly~~ tendered ~~and selected for purchase~~ pursuant to the ~~Asset Sale Offer and Section 4.11(e) hereof~~Excess Proceeds Offer, (iiB) ~~irrevocably~~ deposit with the Paying ~~Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal~~ Agent money sufficient to pay the ~~Asset Sale Offer Amount in respect~~ purchase price of all ~~Notes~~ Securities or portions thereof so accepted; , and (~~iii~~C) deliver, or cause to be delivered, to the Trustee ~~the Notes~~ all Securities or portions thereof so accepted together with an Officers' Certificate ~~listing~~ specifying the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder Securities or portions thereof so accepted for payment by the ~~Asset Sale Offer Amount for~~ Company. The Paying Agent shall promptly mail to the Holders of Securities so accepted payment in an amount equal to the purchase price, and the Trustee shall promptly authenticate and mail to such ~~Notes~~ Holders a new Security equal in principal amount to any unpurchased portion of the Security surrendered; PROVIDED, HOWEVER, that each Security purchased and each new Security issued shall be in a principal amount of $1,000 or ~~portions~~ integral multiples thereof. The Company ~~shall~~ will publicly announce the results of the ~~Asset Sale~~ Excess Proceeds Offer ~~on or~~ as soon as practicable after the ~~Asset Sale Purchase~~ Excess Proceeds Payment Date. For purposes of this Section ~~4.11~~4.06, the Trustee shall act as the Paying Agent. (iv) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations thereunder in the event that such Excess Proceeds are received by the Company under this Section 4.06 and the Company is required to repurchase Securities as described above. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.06, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.06 by virtue thereof. (c) In the event of the transfer of substantially all (but not all) the property and assets of the Company as an entirety to a Person in a transaction permitted by Section 5.01 the Successor Company (as defined therein) shall be deemed to have sold the properties and assets of the Company not so transferred for purposes of this Section 4.06, and shall comply with the provisions of this Section 4.06 with respect to such deemed sale as if it were an Asset Disposition and the Successor Company shall be deemed to have received Net Available Cash in an amount equal to the fair market value (as determined in good faith by the Board of Directors) of the properties and assets not so transferred or sold.

Appears in 1 contract

Sources: Indenture (Amtrol Inc /Ri/)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted ~~Subsidiary~~ Subsidiaries to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale 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 Sale (which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions) involving in excess of $1,000,000) and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents and is received at the time of such sale and (ii) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied by the Company (or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors of the Company, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); (2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap) with a purchase price in excess of the greater of $75 million and 2.0% of Total Assets, at least 75% of the consideration from such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis) (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and (3) within ~~270~~ 450 days from the later of (A) the date of such Asset ~~Sale either~~Disposition and (B) the receipt of the Net Available Cash from such Asset Disposition (as may be extended by an Acceptable Commitment as set forth below, the “Proceeds Application Period”), an amount equal to the Net Available Cash (the “Applicable Proceeds”) is applied, to the extent the Company or any Restricted Subsidiary, as the case may be, elects: (Aa) (i) to prepay, ~~repay, redeem~~ repay or purchase any Indebtedness of a Non-Guarantor or that is secured by ~~its terms is not subordinate~~ a Lien (in each case, other than Indebtedness owed to the ~~Notes~~ Company or any ~~Guarantee and~~Restricted Subsidiary) or Indebtedness under the Existing Credit Agreement (or any Refinancing Indebtedness in respect thereof); provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (a), the ~~case of any~~ Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be reduced in an amount equal to the principal amount so prepaid, repaid or purchased; (ii) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to redeem Notes as described in Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions; or (iii) to prepay, repay or purchase Pari Passu Indebtedness; provided further that, to the extent the Company redeems, repays or repurchases Pari Passu Indebtedness pursuant to this clause (iii), the Company shall equally and ratably reduce Obligations under ~~any revolving credit facility~~the Notes as provided under Section 5.7, ~~effect a permanent reduction~~ through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the ~~availability under such revolving credit facility~~procedures set forth below for an Asset Disposition Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; ~~and~~or (Bb) ~~to:~~ (1i) ~~make~~ to invest in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary), properties or assets that replace the businesses, properties or and/or assets that ~~were~~ are the subject of such Asset ~~Sale or in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock~~ Disposition, with any such investment made by way of a ~~Person that becomes a Restricted Subsidiary as a result~~ capital or other lease valued at the present value of the ~~acquisition~~ minimum amount of payments under such lease (as reasonably determined by the Company); provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Company that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such ~~Capital Stock; provided that such Person is, at~~ 450th day (the ~~time it becomes a Restricted Subsidiary, engaged in a Related Business~~“Applicable Commitment”); or (Cc) a any combination of ~~prepayment~~ the foregoing; provided that, (1) pending the final application of amounts equal to Net Available Cash in accordance with clause (a) or clause (b) above, the Company and ~~investment permitted~~ its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise use such Net Available Cash in any manner not prohibited by this Indenture (and elect not to have such use count as a use of cash set forth in clauses (Aa) and (B)b) above) and (2) the Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Applicable Proceeds attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (b) above with respect to such Asset Disposition. (b) ~~Any Net Available Cash not applied within 270~~ If, with respect to any Asset Disposition, at the expiration of the Proceeds Application Period with respect to such Asset Disposition, there remains Applicable Proceeds in excess of the greater of $50.0 million and 1.5% of Total Assets (such amount of Applicable Proceeds that are equal to the greater of $50.0 million and 1.5% of Total Assets, “Declined Excess Proceeds,” and such amount of Applicable Proceeds that are in excess of the greater of $50.0 million and 1.5% of Total Assets, “Excess Proceeds”), then subject to the limitations with respect to Foreign Dispositions set forth below, the Company shall make an offer (an “Asset Disposition Offer”) no later than ten business days after the ~~consummation~~ expiration of ~~an Asset Sale as provided in clauses (A)~~the Proceeds Application Period to all Holders of Notes and, ~~(B) or (C)~~ if required by the terms of ~~paragraph (a) above will be deemed~~ any Pari Passu Indebtedness, to ~~constitute "Excess Proceeds." When~~ all holders of such Pari Passu Indebtedness, to purchase the ~~aggregate~~ maximum principal amount of ~~Excess Proceeds exceeds $5.0 million~~such Notes and Pari Passu Indebtedness, ~~the Company will be required to make an offer to an Holders (an "Asset Sale Offer"), to purchase~~as appropriate, on a pro rata ~~basis the principal amount~~ basis, that may be purchased out of ~~Notes equal in amount to the~~ such Excess ~~Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount")~~Proceeds, if any, at ~~a purchase price~~ an offer price, in the case of the Notes, in cash in an amount equal to 100% of the principal amount thereof (or in the event such other Indebtedness was issued with original issue discount, 100% of the accreted value thereof), plus accrued and unpaid ~~interest and Liquidated Damages thereon~~ interest, if any (or such lesser price with respect to Pari Passu Indebtedness, if any, as may be provided by the terms of such other Indebtedness), to, but not including, the date fixed for the closing of ~~purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date)~~such offer, in accordance with the procedures set forth in this ~~Indenture~~Indenture and the agreement governing the Pari Passu Indebtedness, as applicable, and, with respect to the Notes, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. Notices of an Asset Disposition Offer shall be sent by first class mail or sent electronically, at least 10 days but not more than 60 days before the purchase date to each Holder of the Notes at such Holder’s registered address or otherwise in accordance with the ~~following standards: (i) If the aggregate principal amount~~ applicable procedures of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the DTC. The Company may ~~use any remaining Excess Proceeds following~~ satisfy the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant foregoing obligations with respect to ~~such deemed sale as if it were~~ the Applicable Proceeds by making an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Disposition Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name expiration of the ~~Holder,~~ Proceeds Application Period (the ~~principal amount of Notes delivered for purchase, and~~ “Advance Offer”) with respect to all or a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part ~~will be issued new Certificated Notes equal in principal amount to the unpurchased portion~~ of the ~~Certificated Note or Notes surrendered, which unpurchased portion will be equal~~ Applicable Proceeds (the “Advance Portion”) in ~~principal amount~~ advance of being required to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to do so by this ~~Section 4.11~~Indenture. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent.

Appears in 1 contract

Sources: Indenture (Primo Water Corp /CN/)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company ~~shall~~ will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ 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 ~~Sale (which~~ Disposition, as such fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) shall be determined in good faith by the ~~Board~~ Company, which determination shall be conclusive (including as to the value of ~~Directors for~~ all noncash consideration), (ii) in the case of any ~~transaction~~ Asset Disposition (or series of ~~transactions~~related Asset Dispositions) ~~involving in excess~~ having a fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) of $~~1,000,000) and~~ 25.0 million or more, at least 7575.0% of the consideration (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) for such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis) received ~~therefor~~ by the Company or such Restricted Subsidiary is in the form of ~~cash or Cash Equivalents and is received at the time of such sale~~ cash, and (iiiii) an amount equal to ~~100~~100.0% of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the Company (or ~~such~~ any Restricted Subsidiary, as the case may be) in accordance with Section 411(b). (b) To the extent that such Net Available Cash is from an Asset Disposition, an amount equal to 100.0% of such Net Available Cash is applied by the Company (or any Restricted Subsidiary, as the case may be) as follows: (A) first, either (x) to the extent that the Company or such Restricted Subsidiary elects (or is required by the terms of any Indebtedness of the Company or any Restricted Subsidiary), to prepay, repay or purchase any such Indebtedness (other than Subordinated Obligations) or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness (other than Subordinated Obligations) (in each case other than Indebtedness owed to the Company or a Restricted Subsidiary) within ~~270~~ 450 days ~~from~~ after the later of the date of such Asset ~~Sale either:~~Disposition and the date of receipt of such Net Available Cash, or (y) to the extent that the Company or such Restricted Subsidiary elects, to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Company or another Restricted Subsidiary) within 450 days from the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash, or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 450 days to complete, the period of time necessary to complete such project; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above (such balance, the “Excess Proceeds”), to ~~prepay~~make an offer to purchase Notes and (to the extent the Company or such Restricted Subsidiary elects, ~~repay~~or is required by the terms thereof) to purchase, redeem or ~~purchase~~ repay any other Senior Indebtedness ~~that by its terms is not subordinate~~ of the Company or a Restricted Subsidiary, pursuant and subject to the ~~Notes or any Guarantee and, in~~ conditions of this Indenture and the ~~case of any~~ agreements governing such ~~Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility~~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) ~~to:~~ above, to fund (to the extent consistent with any other applicable provision of this Indenture) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations or the making of other Restricted Payments); provided, however, that (1) ~~make~~ in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (B) above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an ~~investment in properties~~ amount equal to the principal amount so prepaid, repaid or ~~assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or~~ purchased and (2) ~~acquire~~ the ~~Capital~~ Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (A)(y) above with respect to such Asset Disposition. Notwithstanding the foregoing provisions of this Section 411, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 411(b) except to the extent that the aggregate Net Available Cash from all Asset Dispositions subject to this Section 411(b) or equivalent amount that is not applied in accordance with this Section 411(b) exceeds $75.0 million. If the aggregate principal amount of Notes and/or other Indebtedness of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to clause (B) above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding principal amount of such Notes and the denominator of which is the sum of the outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. (c) For the purposes of Section 411(a)(ii), the following are deemed to be cash: (1) Temporary Cash Investments and Cash Equivalents; (2) the assumption of Indebtedness of the Company (other than Disqualified Stock of ~~a Person~~ the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition; (3) Indebtedness of any Restricted Subsidiary that ~~becomes~~ is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the ~~acquisition~~ extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such ~~Capital Stock~~Indebtedness in connection with such Asset Disposition; ~~provided~~ (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such ~~Person is, at~~ Restricted Subsidiary into cash within 180 days; (5) consideration consisting of Indebtedness of the ~~time it becomes a~~ Company or any Restricted Subsidiary~~, engaged in a Related Business~~; or (C6) ~~a combination of prepayment and investment permitted by clauses (A)~~ Additional Assets; and (B7) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause, not to exceed an aggregate amount at any time outstanding equal to the greater of $125.0 million and 2.5% of Consolidated Tangible Assets (with the Fair Market Value of each item of Designated Noncash Consideration being measured on the date a legally binding commitment for such disposition (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in value). (bd) ~~Any Net Available Cash not applied within 270 days after~~ In the ~~consummation~~ event of an Asset ~~Sale as provided in clauses (A~~Disposition that requires the purchase of Notes pursuant to Section 411(b)(B)~~, (B) or (C) of paragraph (a) above will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0 million~~, the Company will be required to purchase Notes tendered pursuant to an offer by the Company for the Notes (the “Offer”) at a purchase price of 100.0% of their principal amount plus accrued and unpaid interest to the date of purchase in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture. If the aggregate purchase price of the Notes tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of Notes, the remaining Net Available Cash will be available to the Company for use in accordance with Section 411(b)(B) (to repay other Indebtedness of the Company or a Restricted Subsidiary) or Section 411(b)(C). The Company shall not be required to make an ~~offer~~ Offer for Notes pursuant to ~~an Holders~~ this Section 411 if the Net Available Cash available therefor (~~an "Asset Sale Offer"~~after application of the proceeds as provided in Section 411(b)(A), as applicable) is less than $75.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an Offer is required with respect to ~~purchase, on a pro rata basis~~ the Net Available Cash from any subsequent Asset Disposition). No Note will be repurchased in part if less than the Minimum Denomination in original principal amount of ~~Notes equal in amount~~ such Note would be left outstanding. (e) The Company shall, not later than 45 days after the Company becomes obligated to make an Offer pursuant to this Section 411, send a notice to each Holder with a copy to the ~~Excess Proceeds~~ Trustee stating: (1) that an Asset Disposition that requires the purchase of a portion of the Notes has occurred and ~~not just~~ that such Holder has the ~~amount thereof that exceeds $5.0 million~~right (subject to the prorating described below) (to require the ~~"Asset Sale Offer Amount"),~~ Company to purchase a portion of such Holder’s Notes at a purchase price in cash ~~in an amount~~ equal to ~~100~~100.0% of the principal amount ~~thereof~~ thereof, plus accrued and unpaid ~~interest and Liquidated Damages thereon~~ interest, if any, to the date of purchase (subject to the right of ~~each Holder~~ Holders of record on ~~the relevant Record Date~~ a record date to receive interest ~~due~~ on the relevant ~~Interest Payment Date~~interest payment date falling prior to or on the purchase date); (2) the repurchase date (which shall be no earlier than 10 days nor later than 60 days from the date such notice is sent, except that such notice may be delivered more than 60 days prior to the purchase date if the purchase is delayed as provided in clause (5) of this Section 411(e)); (3) the instructions determined by the Company, consistent with this Section 411, that a Holder must follow in order to have its Notes purchased; (4) the amount of the Offer, which amount may be contingent upon the Net Available Cash remaining following the application of Net Available Cash pursuant to Section 411(b)(A); and (5) if such notice is sent prior to the date the Net Available Cash attributable to such Asset Disposition is received, that such offer is conditioned upon receipt of such Net Available Cash and that the purchase date may, in ~~accordance with~~ the ~~procedures set forth in this Indenture~~Company’s discretion, ~~and in accordance with~~ be delayed until such time as the ~~following standards: (i) If~~ Net Available Cash is received. If, upon the expiration of the period for which the Offer remains open, the aggregate principal amount of Notes surrendered by Holders ~~thereof~~ exceeds the amount of ~~Excess Proceeds~~the Offer, the ~~Trustee~~ Company shall select the Notes to be purchased on a pro rata ~~basis, based on the principal amount of Notes tendered,~~ basis (with such adjustments as may be deemed appropriate by the ~~Trustee,~~ Company so that only Notes in denominations of ~~$1,000~~ the Minimum Denomination or integral multiples of $1,000 in excess thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On The Company will comply, to the ~~Asset Sale Payment Date~~extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 411. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 411, the Company ~~shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit~~ will comply with the ~~Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal~~ applicable securities laws and regulations and will not be deemed to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of have breached its obligations under this Section ~~4.11, the Trustee shall act as the Paying Agent~~411 by virtue thereof.

Appears in 1 contract

Sources: Indenture (Hd Supply, Inc.)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company ~~shall~~ will not, and ~~shall~~ will not permit any of its Restricted ~~Subsidiary~~ Subsidiaries to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: : (i1) in the case of any Asset Disposition involving shares or assets having a value equal to or in excess of $1.0 million, the Company or such Restricted ~~Subsidiary~~ Subsidiary, as the case may be, receives consideration ~~at the time of such Asset Sale~~ at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors (including ~~as to~~ the value of all non-cash consideration) ), of the shares and assets subject to such Asset ~~Sale~~ Disposition; (~~which fair market~~ 2) in the case of any Asset Disposition involving shares or assets having a value ~~shall be determined in good faith by the Board of Directors for any transaction (~~equal to or ~~series of transactions) involving~~ in excess of $~~1,000,000) and~~ 1.0 million, at least 75% of the consideration from such Asset Disposition received ~~therefor~~ by the Company or such Restricted ~~Subsidiary~~ Subsidiary, as the case may be, is in the form of cash or Cash ~~Equivalents~~ Equivalents; and ~~is received at the time of such sale and~~ (ii3) an amount equal to 100% of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the Company (or such Restricted Subsidiary, as the case may bebe (i) to prepay, repay or purchase secured Indebtedness of the Company or secured Indebtedness of a Restricted Subsidiary (other than any Disqualified Stock or Guarantor Subordinated Obligations of a Restricted Subsidiary that is a Subsidiary Guarantor), in each case other than Indebtedness owed to the Company or an Affiliate of the Company (other than to the extent such Indebtedness is permitted under Sections 3.3(b)(1), 3.3(b)(2)(solely with respect to Guarantees under this Agreement), 3.3(b)(4)(a), 3.3(b)(4)(c)(solely with respect to the Securities), Section 3.3(b)(6), Section 3.3(b)(10) and Section 3.3(b)(11)), within ~~270~~ 360 days from the later of the date of such Asset ~~Sale either:~~ Disposition or the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (Ai), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to ~~prepay, repay, redeem or purchase any Indebtedness that by its terms is not subordinate~~ be permanently reduced in an amount equal to the ~~Notes~~ principal amount so prepaid, repaid or purchased (except, after the ABL Revolver Date, with respect to prepayments or repayments of the ABL Obligations pursuant to this clause (i)) ; or (ii) to invest in Additional Assets within 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided that pending the final application of any ~~Guarantee and~~such Net Available Cash in accordance with Section 3.7(a)(3)(a) or Section 3.7(a)(3)(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 in the case of an Asset Disposition of Collateral, any ~~such Indebtedness under any revolving credit facility, effect a permanent reduction~~ cash will be deposited in the ~~availability under such revolving credit facility; and (B) to: (1) make an investment~~ Collateral Account or otherwise in ~~properties or assets that replace~~ accordance with the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by clauses (A) and (B)Intercreditor Agreement. (b) Any Net Available Cash from Asset Dispositions that are not applied ~~within 270 days after the consummation of an Asset Sale~~ or invested as provided in ~~clauses (A), (B~~Section 3.7(a)(3) ~~or (C) of paragraph (a) above~~ will be deemed to constitute "“Excess Proceeds.~~" When~~ ” On the 361st day after an Asset Disposition, if the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to an all Holders ~~(an "Asset Sale Offer"),~~ of Securities to ~~purchase, on a pro rata basis~~ purchase the maximum principal amount of ~~Notes equal in amount~~ Securities to which the Asset Disposition Offer applies that may be purchased out of the Excess ~~Proceeds (and not just the amount thereof that exceeds $5.0 million) (the "Asset Sale Offer Amount")~~Proceeds, at ~~a purchase~~ an offer price in cash in an amount equal to 100% of the principal amount ~~thereof~~ of the Securities plus accrued and unpaid interest ~~and Liquidated Damages thereon~~ to but not including the date of ~~purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date)~~purchase, in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes Indenture in denominations of $~~1,000 or~~ 1 principal amount and integral multiples ~~thereof shall be purchased. (ii) If~~ of $1 in excess thereof. To the extent that the aggregate ~~principal~~ amount of ~~Notes~~ Securities so validly tendered and not properly withdrawn pursuant to ~~such~~ an Asset ~~Sale~~ Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds ~~following the completion of the Asset Sale Offer~~ (x) for general corporate ~~purposes (~~purposes, subject to ~~the~~ other ~~provisions of~~ covenants contained in this Indenture; provided that to the extent that the assets disposed of in such asset sale constitutes Collateral, any assets purchased with such Excess Proceeds shall be pledged as Collateral pursuant to the Collateral Documents or (y) to make Restricted Payments in accordance with Section 3.5(a) (such Excess Proceeds not so invested, applied or used for general corporate purposes, “Extra Asset Sale Proceeds”). If the aggregate principal amount of Securities surrendered by holders thereof surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select the Securities to be purchased on a pro rata basis in authorized denominations of the aggregate principal amount of tendered Securities. Upon completion of an such Asset ~~Sale~~ Disposition Offer, the amount of Excess Proceeds ~~then required to be otherwise applied in accordance with this covenant~~ shall be reset to at zero~~, subject to any subsequent Asset Sale~~. (c1) In The Asset Disposition Offer shall remain open for a period of 20 Business Days following its commencement, except to the ~~event~~ 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 ~~transfer of substantially all~~ Asset Disposition Offer Period (~~but not all) of~~ the ~~property and assets of~~ “Asset Disposition Purchase Date”), the Company ~~and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below,~~ will purchase the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are Securities required to be purchased pursuant to this Section 3.7 (the “Asset Disposition Offer Amount”) or, if less than the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Disposition Offer Amount ~~with respect thereto~~has been so validly tendered, all ~~Notes or portions thereof accepted for payment pursuant~~ Securities validly tendered in response to the Asset ~~Sale Offer shall cease to accrue interest from and after~~ Disposition Offer. If the Asset ~~Sale~~ Disposition Purchase ~~Date; (v) that~~ Date is on or after an interest record date and on or before the related interest payment date, any ~~Holder electing to have any Notes or portions thereof purchased pursuant~~ accrued and unpaid interest will be paid to the ~~Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent~~ Person in whose name a Security is registered at ~~the address specified in the notice prior to~~ the close of business on ~~the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw~~ such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchaserecord date, and ~~a statement that such Holder is withdrawing such Holder's election~~ no additional interest will be payable to ~~have such Notes or portions thereof purchased~~ Holders who tender Securities pursuant to the Asset ~~Sale~~ Disposition Offer~~; (vii) that any Holder electing~~ . On or before the Asset Disposition Purchase Date, the Company will, to ~~have Notes purchased~~ the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Securities or portions thereof so validly tendered and not properly withdrawn pursuant to the Asset ~~Sale~~ Disposition Offer, or if less than the Asset Disposition Offer ~~must specify the principal amount that is being~~ Amount has been validly tendered ~~for purchase~~and not properly withdrawn, ~~which principal amount must be~~ all Securities so validly tendered and not properly withdrawn, in each case in denominations of $~~1,000 or an~~ 1 and integral ~~multiple~~ multiples of $1 in excess thereof~~, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part~~ . The Company will ~~be issued new Certificated Notes equal in principal amount~~ deliver to the ~~unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or~~ Trustee an ~~integral multiple thereof, (ix)~~ Officers’ Certificate stating that ~~the Trustee will return to the Holder of a Global Note that is being purchased in part,~~ such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11. (f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes Securities or portions thereof ~~properly tendered and selected~~ were accepted for ~~purchase pursuant to~~ payment by the ~~Asset Sale Offer and~~ Company in accordance with the terms of this Section ~~4.11(e) hereof, (ii) irrevocably deposit with~~ 3.7. The Company or the Paying Agent, ~~by 10:00 a.m.~~as the case may be, ~~New York City time, on such date,~~ will promptly (but in ~~immediately available funds,~~ any case not later than five Business Days after termination of the Asset Disposition Offer Period) mail or deliver to each tendering Holder of Securities an amount equal to the ~~Asset Sale Offer Amount~~ purchase price of the Securities so validly tendered and not properly withdrawn by such Holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Security, and the Trustee, upon delivery of a Company Order, will authenticate and mail or deliver such new Security to such Holder, in ~~respect~~ a principal amount equal to any unpurchased portion of ~~all Notes~~ the Security surrendered; provided that each such new Security will be in a principal amount of $1 or ~~portions thereof~~ an integral multiple of $1 in excess thereof. Any Security not so ~~accepted; and (iii) deliver,~~ accepted will be promptly mailed or ~~cause to be delivered,~~ delivered by the Company to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder ~~or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions~~ thereof. The Company ~~shall~~ will publicly announce the results of the Asset ~~Sale~~ Disposition Offer on ~~or as soon as practicable after~~ the Asset ~~Sale~~ Disposition Purchase Date. For the purposes of this Section ~~4.11~~3.7, the ~~Trustee shall act as~~ following will be deemed to be cash: (1) the ~~Paying Agent~~assumption by the transferee of Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the Company or Indebtedness of a Restricted Subsidiary (other than Guarantor Subordinated Indebtedness, Guarantor Subordinated Obligations or Disqualified Stock of any Wholly- Owned Subsidiary that is a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition (in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with Section 3.7(a)(3)(a)); and (2) securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash. (d) The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Securities pursuant to this Indenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 3.7, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue thereof.

Appears in 1 contract

Sources: Indenture (NBC Acquisition Corp)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale unless:~~ Disposition unless (i) either (x) in the case of any Asset Disposition, the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ Disposition at least equal to the fair market value, as may be determined (and shall be determined, to the extent an Asset Disposition involves a fair market value greater than $10,000,000) in good faith by the Board of Directors, whose determination will be conclusive and evidenced by a resolution of the Board of Directors (including as to the value of all non-cash consideration) ), of the shares and assets subject to such Asset ~~Sale~~ Disposition, or (~~which fair market value shall be determined~~ y) in ~~good faith by~~ the case of a Financing Disposition, the Board of Directors ~~for~~ shall have determined in good faith, which determination will be conclusive and evidenced by a resolution of the Board of Directors, that such Financing Disposition is economically fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and in the best interest of the Company or such Restricted Subsidiary and its respective creditors, (ii) in the case of any ~~transaction (or series of transactions) involving in excess~~ Asset Disposition having a fair market value of $~~1,000,000) and~~ 10,000,000 or more, at least 75% of the consideration thereof received ~~therefor~~ by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents (other than with respect to an Asset Disposition consisting of an exchange of equipment for use in related lines of business, a Financing Disposition or a Fiskeby Transaction), and ~~is received at the time of such sale and~~ (iiiii) an amount equal to 100% of the Net Available Cash from such Asset ~~Sale~~ Disposition (other than any Financing Disposition relating to any Receivables Financing) is applied by the Company (or such Restricted Subsidiary, as the case may be) ~~within 270 days from the date of such Asset Sale either:~~ as follows: (A) first, to the extent the Company elects (or is required by the terms of any Senior Indebtedness (other than the Securities) or Indebtedness (other than Preferred Stock) of a Restricted Subsidiary), to prepay, ~~repay, redeem~~ repay or purchase ~~any~~ Senior Indebtedness ~~that by its terms is not subordinate~~ (other than the Securities) or such Indebtedness (in each case other than Indebtedness owed to the ~~Notes~~ Company or ~~any Guarantee and, in the case of any such Indebtedness under any revolving credit facility, effect~~ a ~~permanent reduction in the availability under such revolving credit facility~~Restricted Subsidiary) within 365 days after an Asset Disposition; ~~and~~ (B) ~~to:~~ second, to the extent of the balance of Net Available Cash after application in accordance with clause (~~1) make~~ A), to the extent the Company or such Restricted Subsidiary elects, to reinvest in Additional Assets (including by means of an ~~investment~~ Investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes Additional Assets by a Restricted Subsidiary as with Net Available Cash received by the Company or another Restricted Subsidiary) within 365 days after an Asset Disposition or, if such reinvestment in Additional Assets is a ~~result~~ project authorized by the Board of Directors of the ~~acquisition of such Capital Stock; provided that such Person is, at the time it becomes~~ Company or a Restricted Subsidiary, ~~engaged in a Related Business~~as the case may be, that will take longer than such 365 days to complete (an "Authorized Project"), the period of time necessary to complete the Authorized Project; or and (C) ~~a combination~~ third, to the extent of ~~prepayment and investment permitted by~~ the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make a Note Offer to purchase Securities pursuant to and subject to the conditions of Section 4.06(b) within 365 days after an Asset Disposition or, in the event that the Company or a Restricted Subsidiary shall have undertaken an Authorized Project, within 20 days after completion of such Authorized Project; provided, however that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and 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, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section exceeds $25,000,000. For the purposes of clause (ii) of this Section 4.06(a), the following are deemed to be cash: (w) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition, (x) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary is released from any Guarantee of such Indebtedness in connection with such Asset Disposition, (y) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents, and (z) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary. (b) ~~Any~~ In the event of an Asset Disposition that requires the purchase of Securities pursuant to Section 4.06(a)(iii)(C), the Company will first be required to purchase Securities tendered pursuant to an offer by the Company for the Securities (the "Note Offer") at a purchase price of 100% of their principal amount plus accrued and unpaid interest to the Purchase Date in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities tendered pursuant to the Note Offer is less than the Net Available Cash allotted to the purchase of the Securities, the Company may apply the remaining Net Available Cash in any manner. After repayment of all the Securities tendered pursuant to the Note Offer, the remaining amount of Net Available Cash, if any, shall be reset at zero. The Company shall not ~~applied within 270 days~~ be required to make a Note Offer for Securities pursuant to this Section if the Net Available Cash available therefor (after application of the ~~consummation of an Asset Sale~~ proceeds as provided in clauses (A) and (B) of Section 4.06(a)(iii)) is less than $25,000,000 (which lesser amount shall be carried forward for purposes of determining whether a Note Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). (1) Promptly, and in any event within 20 days after the Company becomes obligated to make a Note Offer, the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as hereinafter described in the event the Note Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date"), and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (i) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (Bii) or a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (Ciii) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Note Offer, together with the information contained in clause (3). (2) Not later than the date upon which written notice of ~~paragraph (a) above will be deemed~~ a Note Offer is delivered to ~~constitute "Excess Proceeds." When~~ the ~~aggregate amount of Excess Proceeds exceeds $5.0 million~~Trustee as provided below, the Company ~~will be required~~ shall deliver to ~~make~~ the Trustee an ~~offer~~ Officers' Certificate as to ~~an Holders~~ (~~an "Asset Sale Offer"), to purchase, on a pro rata basis~~ i) the ~~principal~~ amount of ~~Notes equal in amount to~~ the ~~Excess Proceeds (and not just the amount thereof that exceeds $5.0 million)~~ Note Offer (the "~~Asset Sale~~ Offer Amount"), at (ii) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Note Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.06(a). On or prior to the Purchase Date, the Company shall also irrevocably deposit with the Trustee or with a ~~purchase price~~ Paying Agent (or, if the Company is acting as its own paying agent, segregate and hold in ~~cash~~ trust) in Temporary Cash Investments an amount equal to ~~100% of~~ the ~~principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon~~ Offer Amount to ~~the date of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date),~~ be held for payment in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this ~~covenant with respect~~ Section. Upon the expiration of the period for which the Note Offer remains open (the "Offer Period"), the Company shall deliver to ~~such deemed sale as if it were an Asset Sale~~the Trustee for cancelation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In ~~addition,~~ the ~~fair market value of such properties and assets~~ event that the aggregate purchase price of the ~~Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) If at any time any non-cash consideration received~~ Securities delivered by the Company ~~or any Subsidiary in connection with any Asset Sale~~ to the Trustee is ~~converted into or sold or otherwise disposed~~ less than the Offer Amount, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period 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~~ application in accordance with this ~~covenant~~Section. (e3) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder Holders electing to have ~~any Notes or portions thereof~~ a Security purchased ~~pursuant to the Asset Sale Offer~~ will be required to surrender ~~such Notes~~the Security, with ~~the~~ an appropriate form ~~entitled "Option of Holder to Elect Purchase" on the reverse of such Notes~~ duly completed, to the ~~Paying Agent~~ Company at the address specified in the notice at least three Business Days prior to the ~~close of business on the third Business Day preceding the Asset Sale~~ Purchase Date~~; (vi) that any Holder shall~~ . Holders will be entitled to withdraw ~~such~~ their election if the ~~Paying Agent receives,~~ Trustee or the Company receives not later than ~~the close of business on the second~~ one Business Day ~~preceding~~ prior to the ~~Asset Sale~~ Purchase Date, a telegram, telex, facsimile transmission or ~~letter,~~ letter setting forth the name of the Holder, the principal amount of ~~Notes~~ the Security which was delivered for ~~purchase,~~ purchase by the Holder and a statement that such Holder is withdrawing ~~such Holder's~~ his election to have such ~~Notes or portions thereof purchased pursuant to~~ Security purchased. If at the ~~Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to~~ expiration of the ~~Asset Sale~~ Offer ~~must specify~~ Period the aggregate principal amount of Securities surrendered by Holders exceeds the Offer Amount, the Company shall select the Securities to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that ~~is being tendered for purchase~~only Securities in denominations of $1,000, ~~which principal amount must~~ or integral multiples thereof, shall be ~~$1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes~~ purchased). Holders whose ~~Certificated Notes~~ Securities are ~~being~~ purchased only in part will be issued new ~~Certificated Notes~~ Securities equal in principal amount to the unpurchased portion of the ~~Certificated Note or Notes~~ Securities surrendered~~, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof,~~. (ix4) ~~that~~ At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company will ~~return~~ also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the ~~Holder of a Global Note that is being purchased in part~~surrendering Holder. (d) The Company shall comply, ~~such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal~~ to the ~~unpurchased portion~~ extent applicable, with the requirements of ~~such Global Note; and (x~~Section 14(e) of the Exchange Act and any other ~~information necessary to enable any Holder to tender Notes and to have such Notes purchased~~ securities laws or regulations in connection with the repurchase of Securities pursuant to this ~~Section 4.11. (f) On~~ Section. To the ~~Asset Sale Payment Date~~extent that the provisions of any securities laws or regulations conflict or are inconsistent with provisions of this Section, the Company shall ~~(i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit~~ comply with the ~~Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal~~ applicable securities laws and regulations and shall not be deemed to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of have breached its obligations under this Section ~~4.11, the Trustee shall act as the Paying Agent~~by virtue thereof.

Appears in 1 contract

Sources: Indenture (Ric Holding Inc)

Limitation on Sales of Assets and Subsidiary Stock. (a) The Company ~~shall~~ will not, and ~~shall~~ will not permit any Restricted Subsidiary to, ~~directly or indirectly, consummate~~ make any Asset ~~Sale~~ Disposition unless: (i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset ~~Sale~~ Disposition at least equal to the fair market value (~~including~~ as to of the ~~value of all non-cash consideration~~date a legally binding commitment for such Asset Disposition was entered into) of the shares and assets subject to such Asset ~~Sale (which~~ Disposition, as such fair market value ~~shall~~ may be determined in good faith by the ~~Board~~ Company, which determination shall be conclusive (including as to the value of ~~Directors for~~ all noncash consideration); (ii) in the case of any ~~transaction~~ Asset Disposition (or series of ~~transactions~~related Asset Dispositions) ~~involving in excess~~ having a Fair Market Value (as of the date a legally binding commitment for such Asset Disposition was entered into) of $~~1,000,000) and~~ 50.0 million or more, at least 7575.0% of the consideration 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 ~~therefor~~ by the Company or such Restricted Subsidiary is in the form of ~~cash or Cash Equivalents and is received at the time of such sale~~ cash; and (iiiii) an amount equal to ~~100~~100.0% (as may be adjusted pursuant to clause (3) of the last proviso to this clause (iii)) of the Net Available Cash from such Asset ~~Sale~~ Disposition is applied by the Company (or ~~such~~ any Restricted Subsidiary, as the case may be) as follows: (A) first, either (x) to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Credit Facility Indebtedness, any Senior Indebtedness of the Company or any Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness or Obligations in respect thereof or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness or Obligations in respect thereof (in each case other than Indebtedness owed to the Company or a Restricted Subsidiary) within ~~270~~ 450 days ~~from~~ after the later of the date of such Asset ~~Sale either:~~Disposition and the date of receipt of such Net Available Cash, or (y) to the extent the Company or such Restricted Subsidiary elects, to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Company or another Restricted Subsidiary) within 450 days from the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash, or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 450 days to complete, the period of time necessary to complete such project; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above (such balance, the “Excess Proceeds”), to ~~prepay~~make an offer to purchase Notes and (to the extent the Company or such Restricted Subsidiary elects, ~~repay~~or is required by the terms thereof) to purchase, redeem or ~~purchase~~ repay any other Senior Indebtedness ~~that by its terms is not subordinate~~ of the Company or a Restricted Subsidiary, pursuant and subject to Section 411(b) and Section 411(c) and the ~~Notes or any Guarantee and, in the case of any~~ agreements governing such ~~Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility~~other Indebtedness; and (BC) ~~to: (1) make an investment in properties or assets that replace~~ third, to the ~~properties or assets that were~~ extent of the ~~subject~~ balance of such ~~Asset Sale or~~ Net Available Cash after application in properties or assets that will be used in a Related Business or (2) acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock; provided that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; or (C) a combination of prepayment and investment permitted by accordance with clauses (A) and (B) above (the amount of such balance, “Declined Excess Proceeds”). , to fund (bto the extent consistent with any other applicable provision of this Indenture) ~~Any~~ any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations or the making of other Restricted Payments); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A)(x) or (B) above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; (2) the Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash ~~not applied within 270 days after~~ attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of an the relevant Asset ~~Sale~~ Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (A)(y) above with respect to such Asset Disposition; and (3) the foregoing percentage in this clause (iii) shall be reduced to 50% if the Consolidated Total Leverage Ratio would be equal to or less than 3.00:1.00 after giving pro forma effect to any application of such Net Available Cash as ~~provided~~ set forth herein (any Net Available Cash in respect of Asset Dispositions not required to be applied in accordance with this clause (iii) as a result of the application of this proviso shall collectively constitute “Total Leverage Excess Proceeds”). Notwithstanding the foregoing Section 411(a)(iii), to the extent that repatriating any or all of the Net Available Cash from any Asset Disposition by a Subsidiary that is not a Subsidiary Guarantor (w) could result in adverse tax consequences to the Company or any of its Subsidiaries, (x) is prohibited or delayed by applicable local law, (y) could reasonably be expected to give rise to or result in (A) any violation of applicable law, (B) any liability (criminal, civil, administrative or other) for any of the officers, directors or equityholders of the Company, any Restricted Subsidiary or any Parent, (C) any violation of the provisions of any joint venture or other material agreement governing or binding upon the Company or any Restricted Subsidiary or (D) any material risk of any such violation or liability referred to in clauses (A), (B) or and (C) or (z) could reasonably be expected to give rise to or result in any cost, expense, liability or obligation (including any Tax) other than routine and immaterial out-of-pocket expenses (in the case of ~~paragraph~~ the foregoing clauses (aw), (x), (y) and (z), as determined by the Company in good faith, which determination shall be conclusive), the portion of such Net Available Cash so affected will not be required to be applied in compliance with the foregoing provisions of this Section 411, and such amounts may be retained by the Company or any Restricted Subsidiary or invested in, distributed to or otherwise transferred to any other Subsidiary; provided that, in the case of the foregoing clause (y), the Company shall take commercially reasonable efforts to and to cause the applicable Restricted Subsidiary to, take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation or transfer, and if such repatriation or transfer of any of such affected Net Available Cash can be achieved, such repatriation or transfer will be promptly effected and such repatriated Net Available Cash will be applied (whether or not repatriation or transfer actually occurs) in compliance with the foregoing provisions of this Section 411. The time periods set forth in this Section 411 shall not start until such time as the Net Available Cash may be repatriated or transferred whether or not such repatriation or transfer actually occurs. Notwithstanding the foregoing provisions of this Section 411, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 411 except to the extent that the aggregate Net Available Cash from all Asset Dispositions or equivalent amount that is not applied in accordance with this Section 411 (excluding all Total Leverage Excess Proceeds) exceeds $50.0 million. If the aggregate principal amount of Notes and/or other Indebtedness of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to clause (B) above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding principal amount of such Notes and the denominator of which is the sum of the outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. For the purposes of Section 411(a)(ii), the following are deemed to ~~constitute "Excess Proceeds." When~~ be cash: (1) Temporary Cash Investments and Cash Equivalents, (2) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days, (5) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary, (6) Additional Assets and (7) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause, not to exceed an aggregate amount at any time outstanding equal to the greater of ~~Excess Proceeds exceeds~~ $~~5.0 million~~125.0 million and 10.0% of Consolidated Tangible Assets at the time of such Asset Disposition (with the Fair Market Value of each item of Designated Noncash Consideration being measured as of the date a legally binding commitment for such disposition (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in value). (b) In the event of an Asset Disposition that requires the purchase of Notes pursuant to Section 411(a)(iii)(B), the Company will be required to purchase Notes tendered pursuant to an offer by the Company for the Notes (the “Offer”) at a purchase price of 100% of their principal amount plus accrued and unpaid interest to the date of purchase in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 411(c). If the aggregate purchase price of the Notes tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of Notes, the remaining Net Available Cash will be available to the Company and the Restricted Subsidiaries for use in accordance with Section 411(a)(iii)(B) (to repay other Indebtedness of the Company or a Restricted Subsidiary) or Section 411(a)(iii)(C). The Company shall not be required to make an ~~offer~~ Offer for Notes pursuant to this Section 411 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 411(a)(iii)(A)) is less than $50.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an ~~Holders (an "~~Offer is required with respect to the Net Available Cash from any subsequent Asset ~~Sale Offer"~~Disposition)~~, to purchase, on a pro rata basis~~ . No Note will be repurchased in part if less than the Minimum Denomination in original principal amount of ~~Notes equal in amount~~ such Note would be left outstanding. (c) The Company shall, not later than 45 days after the Company becomes obligated to make an Offer pursuant to this Section 411, mail a notice to each Holder with a copy to the ~~Excess Proceeds~~ Trustee stating: (1) that an Asset Disposition that requires the purchase of a portion of the Notes has occurred and ~~not just~~ that such Holder has the ~~amount thereof that exceeds $5.0 million~~right (subject to the prorating described below) (to require the ~~"Asset Sale Offer Amount"),~~ Company to purchase a portion of such Holder’s Notes at a purchase price in cash ~~in an amount~~ equal to 100% of the principal amount ~~thereof~~ thereof, plus accrued and unpaid ~~interest and Liquidated Damages thereon~~ interest, if any, to the date of purchase (subject to Section 307); (2) the ~~right~~ repurchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed); (3) the instructions determined by the Company, consistent with this Section 411, that a Holder must follow in order to have its Notes purchased; and (4) the amount of ~~each Holder~~ the Offer. If, upon the expiration of ~~record on~~ the ~~relevant Record Date to receive interest due on~~ period for which the ~~relevant Interest Payment Date)~~Offer remains open, ~~in accordance with the procedures set forth in this Indenture, and in accordance with the following standards: (i) If~~ the aggregate principal amount of Notes surrendered by Holders ~~thereof~~ exceeds the amount of ~~Excess Proceeds~~the Offer, the ~~Trustee~~ Company shall select the Notes to be purchased on a pro rata ~~basis, based on the principal amount of Notes tendered,~~ basis (with such adjustments as may be deemed appropriate by the ~~Trustee,~~ Company so that only Notes in denominations of ~~$1,000~~ the Minimum Denomination or integral multiples of $1,000 in excess thereof shall be purchased. (ii) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale. (c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant. (d) ~~If at~~ The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any ~~time any non-cash consideration received by the Company~~ other securities laws or ~~any Subsidiary~~ regulations in connection with ~~any Asset Sale is converted into or sold or otherwise disposed~~ the repurchase of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant. (e) Within 30 calendar days after the date the amount of Excess Proceeds exceeds $5.0 million, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company stating: (i) that an Asset Sale Offer is being made Notes pursuant to this Section ~~4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if~~ 411. To the amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer; (ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed; (iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Purchase Date; (v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date; (vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Purchase Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer; (vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof, (viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof, (ix) extent that the ~~Trustee will return to the Holder~~ provisions of ~~a Global Note that is being purchased in part, such Global Note~~ any securities laws or regulations conflict with ~~a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion~~ provisions of ~~such Global Note; and (x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to~~ this Section ~~4.11. (f) On the Asset Sale Payment Date~~411, the Company ~~shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit~~ will comply with the ~~Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal~~ applicable securities laws and regulations and will not be deemed to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. Subject to the provisions of Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder or portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of have breached its obligations under this Section ~~4.11, the Trustee shall act as the Paying Agent~~411 by virtue thereof.

Appears in 1 contract

Sources: Indenture (Servicemaster Global Holdings Inc)

Common use of Limitation on Sales of Assets and Subsidiary Stock Clause in Contracts