Limitations on Asset Sales. (a) The Company will not, and will not permit any of its Subsidiaries to, consummate an Asset Sale, unless (i) the Company (or the Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets, property or Capital Stock issued or sold or otherwise disposed of; (ii) no Default or Event of Default shall have occurred and be continuing at the time of the consummation of such Asset Sale or would be caused thereby and (iii) at least 75% of the consideration received from such Asset Sale is, or will be when paid (in the case of milestones, royalties and other deferred payment obligations), in the form of cash or cash equivalents; provided that for purposes of this clause (iii), any Designated Non-Cash Consideration received by the Company or such Subsidiary in respect of such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii), not in excess of 25% of the consideration received from such Asset Sale at the time of the receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash and (iv) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied to prepay, repay, redeem or repurchase the Notes as provided under Section 2.13 through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof plus the Interest-Make-Whole Payment) or by making an offer (in accordance with the procedures set forth in this Section 4.11 for an Asset Sale Offer) to all Holders of the Notes to purchase their Notes at 100% of the principal amount thereof plus the Interest-Make-Whole Payment, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes that would otherwise be prepaid; provided that, if the Issuer makes an offer to purchase the Notes pursuant to the foregoing proviso, the Issuer will be deemed to have satisfied its obligations under this clause (iv) and any amounts remaining after such offer to purchase will not be counted in the computation of Net Available Cash; provided further that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause (iv), the Issuer or 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 repurchased. (b) On the 30th day after an Asset Sale or the receipt of such Net Available Cash, the Issuer will be required to make an offer (“Asset Sale Offer”) to all Holders of the Notes to purchase the maximum principal amount of the Notes that may be purchased out of the Net Available Cash at an offer price in an amount equal to 100% of the principal amount of the Notes plus the Interest Make-Whole Payment, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture in minimum denominations of $1,000 and integral multiples of $1,000 in excess thereof. The Issuer will deliver notice of such Asset Sale Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of the Notes at the address of such Holder appearing in the register or otherwise in accordance with the applicable procedures of the Depositary, describing the transaction or transactions that constitute the Asset Sale and offering to repurchase the Notes for the specified purchase price on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by this Indenture and described in such notice. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Sale by making an Asset Sale Offer with respect to all Net Available Cash prior to the expiration of the relevant 30 days (or such longer period provided above) or with respect to any unapplied Net Available Cash. Notwithstanding the foregoing, in the case of any Asset Sale consisting of the Disposition of Designated U.S. Assets, any related Asset Sale Offer shall be at an offer price in an amount equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest, if any, to, but not including, the date of purchase (without any Interest Make-Whole Payment). (c) To the extent that the aggregate amount of the Notes validly tendered and not validly withdrawn pursuant to an Asset Sale Offer is less than the Net Available Cash, the Issuer may use any remaining Net Available Cash for any purpose not prohibited by this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Sale Offer by Holders exceeds the amount of Net Available Cash, the Net Available Cash shall be allocated among the Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes; provided that no Notes will be selected and purchased in an unauthorized denomination. Additionally, the Issuer may, at its option, make an Asset Sale Offer using proceeds from any Asset Sale at any time after the consummation of such Asset Sale. Upon consummation or expiration of any Asset Sale Offer, any remaining Net Available Cash may be used by the Issuer 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 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 Issuer upon converting such portion into Dollars. (i) For the purposes of Section 4.11(a)(iii), the following will be deemed to be cash: (A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Issuer or a Subsidiary (other than Subordinated Indebtedness of the Issuer or a Guarantor) and the release of the Issuer or such Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Sale (to the extent the Issuer or such Subsidiary would have had continuing liability for such Indebtedness or other liability); (B) securities, notes or other obligations received by the Issuer or any Subsidiary of the Issuer from the transferee that are converted by the Issuer or such Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Sale; (C) Indebtedness or other liabilities of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that the Issuer and each other Subsidiary have no continuing liability for the payment of such Indebtedness or other liabilities in connection with such Asset Sale; and (D) 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 Subsidiary. (ii) Upon the commencement of an Asset Sale Offer, the Issuer shall send, or cause to be sent, by first class mail or electronically, a notice to the Trustee, the Collateral Trustee and to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Asset Sale Offer. Any Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state: (A) that the Asset Sale Offer is being made pursuant to this Section 4.11 and that, to the extent lawful, all Notes tendered and not withdrawn shall be accepted for payment (unless prorated); (B) the Asset Sale payment amount, the Asset Sale offered price, and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and not later than 60 days from the date such notice is mailed (the “Asset Sale Payment Date”); (C) that any Notes not tendered or accepted for payment shall continue to accrue interest in accordance with the terms thereof; (D) that, unless the Issuer defaults in making such payment, any Notes accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on and after the Asset Sale Payment Date; (E) that Holders electing to have any Notes purchased pursuant to any Asset Sale Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Trustee at the address specified in the notice at least three Business Days before the Asset Sale Payment Date; (F) that Holders shall be entitled to withdraw their election if the Trustee receives, not later than three Business Days prior to the Asset Sale Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Note purchased; (G) that if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale payment amount, the Trustee shall select the Notes to be purchased in the manner described under Section 16.02(d) of this Indenture; and (H) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry). (iii) 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 Sale Offer. (iv) On the Asset Sale Payment Date, the Issuer will, to the extent permitted by law, (A) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Asset Sale Offer, (B) deposit with the Trustee an amount equal to the aggregate Asset Sale payment in respect of all Notes or portions thereof so tendered, and (C) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer. (e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 15.02 hereof or this Section 4.11, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 15.02 hereof or this Section 4.11 by virtue of such compliance. (f) For the avoidance of doubt, the provisions of this Indenture related to the Issuer’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes.
Appears in 2 contracts
Sources: Indenture (Electra Battery Materials Corp), Indenture (Electra Battery Materials Corp)
Limitations on Asset Sales. (a) The Company will not, and will not permit any of its Subsidiaries to, consummate an Asset Sale, unless (i) the Company (or the Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets, property or Capital Stock issued or sold or otherwise disposed of; (ii) no Default or Event of Default shall have occurred and be continuing at the time of the consummation of such Asset Sale or would be caused thereby and (iii) at least 75% of the consideration received from such Asset Sale is, or will be when paid (in the case of milestones, royalties and other deferred payment obligations), in the form of cash or cash equivalents; provided that for purposes of this clause (iii), any Designated Non-Cash Consideration received by the Company or such Subsidiary in respect of such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii), not in excess of 25% of the consideration received from such Asset Sale at the time of the receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash and (iv) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied to prepay, repay, redeem or repurchase the Notes as provided under Section 2.13 through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof plus the Interest-Make-Whole Payment) or by making an offer (in accordance with the procedures set forth in this Section 4.11 for an Asset Sale Offer) to all Holders of the Notes to purchase their Notes at 100% of the principal amount thereof plus the Interest-Make-Whole Payment, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes that would otherwise be prepaid; provided that, if the Issuer makes an offer to purchase the Notes pursuant to the foregoing proviso, the Issuer will be deemed to have satisfied its obligations under this clause (iv) and any amounts remaining after such offer to purchase will not be counted in the computation of Net Available Cash; provided further that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause (iv), the Issuer or 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 repurchased.
(b) On the 30th day after an Asset Sale or the receipt of such Net Available Cash, the Issuer will be required to make an offer (“Asset Sale Offer”) to all Holders of the Notes to purchase the maximum principal amount of the Notes that may be purchased out of the Net Available Cash at an offer price in an amount equal to 100% of the principal amount of the Notes plus the Interest Make-Whole Payment, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture in minimum denominations of $1,000 and integral multiples of $1,000 in excess thereof. The Issuer will deliver notice of such Asset Sale Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of the Notes at the address of such Holder appearing in the register or otherwise in accordance with the applicable procedures of the Depositary, describing the transaction or transactions that constitute the Asset Sale and offering to repurchase the Notes for the specified purchase price on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by this Indenture and described in such notice. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Sale by making an Asset Sale Offer with respect to all Net Available Cash prior to the expiration of the relevant 30 days (or such longer period provided above) or with respect to any unapplied Net Available Cash. Notwithstanding the foregoing, in the case of any Asset Sale consisting of the Disposition of Designated U.S. Assets, any related Asset Sale Offer shall be at an offer price in an amount equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest, if any, to, but not including, the date of purchase (without any Interest Make-Whole Payment).
(c) To the extent that the aggregate amount of the Notes validly tendered and not validly withdrawn pursuant to an Asset Sale Offer is less than the Net Available Cash, the Issuer may use any remaining Net Available Cash for any purpose not prohibited by this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Sale Offer by Holders exceeds the amount of Net Available Cash, the Net Available Cash shall be allocated among the Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes; provided that no Notes will be selected and purchased in an unauthorized denomination. Additionally, the Issuer may, at its option, make an Asset Sale Offer using proceeds from any Asset Sale at any time after the consummation of such Asset Sale. Upon consummation or expiration of any Asset Sale Offer, any remaining Net Available Cash may be used by the Issuer 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 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 Issuer upon converting such portion into Dollars.
(i) For the purposes of Section 4.11(a)(iii), the following will be deemed to be cash:
(A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Issuer or a Subsidiary (other than Subordinated Indebtedness of the Issuer or a Guarantor) and the release of the Issuer or such Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Sale (to the extent the Issuer or such Subsidiary would have had continuing liability for such Indebtedness or other liability);
(B) securities, notes or other obligations received by the Issuer or any Subsidiary of the Issuer from the transferee that are converted by the Issuer or such Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Sale;
(C) Indebtedness or other liabilities of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that the Issuer and each other Subsidiary have no continuing liability for the payment of such Indebtedness or other liabilities in connection with such Asset Sale; and
(D) 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 Subsidiary.
(ii) Upon the commencement of an Asset Sale Offer, the Issuer shall send, or cause to be sent, by first class mail or electronically, a notice to the Trustee, the Collateral Trustee and to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Asset Sale Offer. Any Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(A) that the Asset Sale Offer is being made pursuant to this Section 4.11 and that, to the extent lawful, all Notes tendered and not withdrawn shall be accepted for payment (unless prorated);
(B) the Asset Sale payment amount, the Asset Sale offered price, and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and not later than 60 days from the date such notice is mailed (the “Asset Sale Payment Date”);
(C) that any Notes not tendered or accepted for payment shall continue to accrue interest in accordance with the terms thereof;
(D) that, unless the Issuer defaults in making such payment, any Notes accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on and after the Asset Sale Payment Date;
(E) that Holders electing to have any Notes purchased pursuant to any Asset Sale Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Trustee at the address specified in the notice at least three Business Days before the Asset Sale Payment Date;
(F) that Holders shall be entitled to withdraw their election if the Trustee receives, not later than three Business Days prior to the Asset Sale Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder ▇▇▇▇▇▇ is withdrawing its election to have such Note purchased;
(G) that if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale payment amount, the Trustee shall select the Notes to be purchased in the manner described under Section 16.02(d) of this Indenture; and
(H) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry).
(iii) 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 Sale Offer.
(iv) On the Asset Sale Payment Date, the Issuer will, to the extent permitted by law,
(A) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Asset Sale Offer,
(B) deposit with the Trustee an amount equal to the aggregate Asset Sale payment in respect of all Notes or portions thereof so tendered, and
(C) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer.
(e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 15.02 hereof or this Section 4.11, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 15.02 hereof or this Section 4.11 by virtue of such compliance.
(f) For the avoidance of doubt, the provisions of this Indenture related to the Issuer’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes.
Appears in 2 contracts
Sources: Indenture (Electra Battery Materials Corp), Indenture (Electra Battery Materials Corp)
Limitations on Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an make any Asset SaleSale unless:
(a) the Asset Sale is for fair market value, unless as determined in good faith by the Board of Directors;
(b) at least 75% of the value of the consideration therefrom is in the form of Cash and Cash Equivalents; provided that (i) any non-cash consideration received is for fair market value and (ii) the Company receipt of such non-cash consideration is otherwise permitted under this Indenture; and
(or the Subsidiary, as the case may bec) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect immediately before and immediately after giving effect to such Asset Sale) of the assets, property or Capital Stock issued or sold or otherwise disposed of; (ii) no Default or Event of Default shall have occurred and be continuing continuing. Within 270 days after the receipt of any Net Cash Proceeds from an Asset Sale (other than a Sale and Leaseback Transaction), the Company or any Restricted Subsidiary shall, at its election, apply the time of the consummation Net Cash Proceeds of such Asset Sale to (i) purchase, prepay or would be caused thereby and (iii) at least 75% redeem Indebtedness of the consideration received from such Asset Sale is, Company or will any Restricted Subsidiary or (ii) (A) acquire or commit to acquire all or substantially all of the assets of a Permitted Business or a majority of the Voting Stock of another Person that thereupon becomes a Restricted Subsidiary engaged in a Permitted Business; or (B) acquire or commit to acquire assets that are to be when paid (in the case of milestones, royalties and other deferred payment obligations), in the form of cash or cash equivalents; provided that for purposes of this clause (iii), any Designated Non-Cash Consideration received used by the Company or such a Restricted Subsidiary in respect of such a Permitted Business; provided that if the Company receives Net Cash Proceeds from Asset Sale having Sales in an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii), not amount in excess of 25% of the consideration received from such Asset Sale 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 U.S. $20 million in value, shall be deemed to be cash and (iv) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied to prepay, repay, redeem or repurchase the Notes as provided under Section 2.13 through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof plus the Interest-Make-Whole Payment) or by making an offer (in accordance with the procedures set forth in this Section 4.11 for an Asset Sale Offer) to all Holders of the Notes to purchase their Notes at 100% of the principal amount thereof plus the Interest-Make-Whole Payment, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes that would otherwise be prepaid; provided that, if the Issuer makes an offer to purchase the Notes pursuant to the foregoing provisoany fiscal year, the Issuer will be deemed to have satisfied its obligations under this clause (iv) and any amounts remaining after Company shall apply such offer to purchase will not be counted in the computation of Net Available Cash; provided further that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause (iv), the Issuer or 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 repurchased.
(b) On the 30th day after an Asset Sale or the receipt of such Net Available Cash, the Issuer will be required to make an offer (“Asset Sale Offer”) to all Holders of the Notes to purchase the maximum principal amount of the Notes that may be purchased out of the Net Available Cash at an offer price in an amount equal to 100% of the principal amount of the Notes plus the Interest Make-Whole Payment, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture in minimum denominations of $1,000 and integral multiples of $1,000 in excess thereof. The Issuer will deliver notice of such Asset Sale Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of the Notes at the address of such Holder appearing in the register or otherwise in accordance with the applicable procedures of the Depositary, describing the transaction or transactions that constitute the Asset Sale and offering to repurchase the Notes for the specified purchase price on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by this Indenture and described in such notice. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Sale by making an Asset Sale Offer with respect to all Net Available Cash prior to the expiration of the relevant 30 days (or such longer period provided above) or with respect to any unapplied Net Available Cash. Notwithstanding the foregoing, in the case of any Asset Sale consisting of the Disposition of Designated U.S. Assets, any related Asset Sale Offer shall be at an offer price in an amount equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest, if any, to, but not including, the date of purchase (without any Interest Make-Whole Payment).
(c) To the extent that the aggregate amount of the Notes validly tendered and not validly withdrawn pursuant to an Asset Sale Offer is less than the Net Available Cash, the Issuer may use any remaining Net Available Cash for any purpose not prohibited by this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Sale Offer by Holders exceeds the amount of Net Available Cash, the Net Available Cash shall be allocated among the Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes; provided that no Notes will be selected and purchased in an unauthorized denomination. Additionally, the Issuer may, at its option, make an Asset Sale Offer using proceeds from any Asset Sale at any time after the consummation of such Asset Sale. Upon consummation or expiration of any Asset Sale Offer, any remaining Net Available Cash may be used by the Issuer 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 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 Issuer upon converting such portion into Dollars.
(i) For the purposes of Section 4.11(a)(iii), the following will be deemed to be cash:
(A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Issuer or a Subsidiary (other than Subordinated Indebtedness of the Issuer or a Guarantor) and the release of the Issuer or such Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Sale (to the extent the Issuer or such Subsidiary would have had continuing liability for such Indebtedness or other liability);
(B) securities, notes or other obligations received by the Issuer or any Subsidiary of the Issuer from the transferee that are converted by the Issuer or such Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Sale;
(C) Indebtedness or other liabilities of any Subsidiary that is no longer a Subsidiary as a result of such Asset Saleexcess, to the extent that not otherwise applied as permitted in this paragraph within the Issuer and each other Subsidiary have no continuing liability following fiscal year for the payment of such Indebtedness purposes set forth in clauses (i) or other liabilities in connection with such Asset Sale; and
(D) 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 Subsidiary.
(ii) Upon the commencement of an Asset Sale Offer, the Issuer shall send, or cause to be sent, by first class mail or electronically, a notice to the Trustee, the Collateral Trustee and to each Holder at its registered addressabove. The notice Company or any Restricted Subsidiary shall contain all instructions apply the Net Cash Proceeds of any Sale and materials necessary to enable such Holder to tender Notes pursuant to the Asset Sale Offer. Any Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
Leaseback Transaction as set forth in clauses (Ai) that the Asset Sale Offer is being made pursuant to this Section 4.11 and that, to the extent lawful, all Notes tendered and not withdrawn shall be accepted for payment or (unless prorated);
(Bii)(B) the Asset Sale payment amount, the Asset Sale offered price, and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and not later than 60 days from the date such notice is mailed (the “Asset Sale Payment Date”);
(C) that any Notes not tendered or accepted for payment shall continue to accrue interest in accordance with the terms thereof;
(D) that, unless the Issuer defaults in making such payment, any Notes accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on and after the Asset Sale Payment Date;
(E) that Holders electing to have any Notes purchased pursuant to any Asset Sale Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Trustee at the address specified in the notice at least three Business Days before the Asset Sale Payment Date;
(F) that Holders shall be entitled to withdraw their election if the Trustee receives, not later than three Business Days prior to the Asset Sale Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Note purchased;
(G) that if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale payment amount, the Trustee shall select the Notes to be purchased in the manner described under Section 16.02(d) of this Indenture; and
(H) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry)immediately preceding paragraph.
(iii) 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 Sale Offer.
(iv) On the Asset Sale Payment Date, the Issuer will, to the extent permitted by law,
(A) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Asset Sale Offer,
(B) deposit with the Trustee an amount equal to the aggregate Asset Sale payment in respect of all Notes or portions thereof so tendered, and
(C) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer.
(e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 15.02 hereof or this Section 4.11, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 15.02 hereof or this Section 4.11 by virtue of such compliance.
(f) For the avoidance of doubt, the provisions of this Indenture related to the Issuer’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes.
Appears in 2 contracts
Sources: Indenture (Edenor), Indenture (Edenor)
Limitations on Asset Sales. (a) The Subject to the provisions of Article V hereof, neither the Company will notnor any Restricted Subsidiary may, and will not permit any of its Subsidiaries todirectly or indirectly, consummate an Asset Sale, unless (i) the Company (or the such Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as reasonably evidenced by a good faith resolution of the date Board of the definitive agreement with respect to such Asset SaleDirectors) of the assets, property or Capital Stock issued or assets sold or otherwise disposed of; (ii) no Default or Event of Default shall have occurred and be continuing at , provided that the time of the consummation of such Asset Sale or would be caused thereby and (iii) at least 75% aggregate fair market value of the consideration received from such any Asset Sale is, or will be when paid (in the case of milestones, royalties and other deferred payment obligations), that is not in the form of cash or Cash Equivalents will not, when aggregated with the fair market value of all other noncash consideration received by the Company and its Restricted Subsidiaries from all previous Asset Sales since the Issue Date that has not been converted into cash equivalentsor Cash Equivalents, exceed 10% of the Consolidated Net Assets of the Company at the time of the Asset Sale under consideration; provided and, provided, further, however, that for purposes the amount of this clause (iii), x) any Designated Non-Cash Consideration liabilities of the Company or any Restricted Subsidiary (other than liabilities that are Incurred in connection with or in contemplation of such Asset Sale) that are assumed by the transferee of any such assets and (y) any notes or other obligations received by the Company or any such Restricted Subsidiary in respect of such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii), not in excess of 25% of the consideration received from such Asset Sale at transferee that are promptly converted by the time of the receipt of Company or 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 valueRestricted Subsidiary into cash, shall be deemed to be cash and (ivto the extent of the cash received) an amount equal to for purposes of this provision.
(b) Within one year after any Asset Sale, the Company (or such Restricted Subsidiary, as the case may be) shall apply 100% of the Net Available Cash Proceeds from such Asset Sale as follows: (A) to repay any outstanding Indebtedness of any Restricted Subsidiary or any unsubordinated Indebtedness of the Company, provided that the Company may repay unsecured Indebtedness that is applied to prepay, repay, redeem or repurchase pari passu in right of payment with the Notes as provided under Section 2.13 through open market purchases (only if the Company shall, prior to or simultaneously therewith, make an irrevocable, unconditional offer to Holders to purchase Notes on a pro rata basis in an amount equal to the extent Net Cash Proceeds from such purchases are at or above 100% of the principal amount thereof plus the Interest-Make-Whole Payment) or by making an offer (in accordance with the procedures set forth in this Section 4.11 for an Asset Sale Offer) to all Holders multiplied by a fraction, the numerator of the Notes to purchase their Notes at 100% of the principal amount thereof plus the Interest-Make-Whole Payment, plus the amount of accrued but unpaid interest, if any, on which is the principal amount of the Notes then outstanding and the denominator of which is the principal amount of the Notes then outstanding plus the aggregate amount of outstanding unsecured Indebtedness other than the Notes ranking pari passu in right of payment with the Notes that would otherwise is to be prepaid; provided thatrepaid with such Net Cash Proceeds and, if provided, further, that the Issuer makes Company shall not be required to offer to repurchase the Notes unless the amount available for such repurchase is at least $20,000,000 or (B) to replace the properties and assets that were the subject of the Asset Sale, or to acquire or improve properties and assets that will be used by the Company and its Restricted Subsidiaries in the ordinary course of business.
(c) Notwithstanding the foregoing, to the extent the Company or any Restricted Subsidiary receives securities or other noncash property or assets as proceeds of any Asset Sale, the Company will not be required to make any application of such noncash proceeds as described in the immediately preceding paragraph until it receives cash or cash equivalent proceeds from a sale, repayment, exchange, redemption or retirement of or extraordinary cash dividend or return of capital on such noncash property.
(d) To the extent the Company is required to make an offer to purchase the Notes pursuant to the foregoing provisothis Section 4.12 (an "Asset Sale Offer"), the Issuer Company will be deemed to have satisfied its obligations under this clause (iv) so notify the Trustee in writing by delivery of an Officers' Certificate and any amounts remaining after such will offer to purchase from all Holders, and will not be counted in purchase from Holders accepting such Asset Sale Offer on the computation date fixed for the closing of Net Available Cash; provided further that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause such Asset Sale Offer (ivthe "Asset Sale Offer Date"), the Issuer or 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 repurchased.
(b) On the 30th day after an Asset Sale or the receipt of such Net Available Cash, the Issuer will be required to make an offer (“Asset Sale Offer”) to all Holders of the Notes to purchase the maximum principal amount (expressed as a multiple of the $1,000) of Notes that may be purchased out of the Net Available Cash Proceeds, at an offer price (the "Asset Sale Offer Price") in cash in an amount equal to 100% of the principal amount of the Notes plus the Interest Make-Whole Payment, thereof plus accrued and unpaid interest, if any, to, but not including, to the date of purchaseAsset Sale Offer Date, in accordance with the procedures set forth in this Indenture in minimum denominations of $1,000 and integral multiples of $1,000 in excess thereofas described below. The Issuer will deliver notice of such Asset Sale Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of the Notes at the address of such Holder appearing in the register or otherwise in accordance with the applicable procedures of the Depositary, describing the transaction or transactions that constitute the Asset Sale and offering to repurchase the Notes for the specified purchase price on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by this Indenture and described in such notice. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Sale by making an Asset Sale Offer with respect to all Net Available Cash prior to the expiration of the relevant 30 days (or such longer period provided above) or with respect to any unapplied Net Available Cash. Notwithstanding the foregoing, in the case of any Asset Sale consisting of the Disposition of Designated U.S. Assets, any related Asset Sale Offer shall be at an offer price in an amount equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest, if any, to, but not including, the date of purchase (without any Interest Make-Whole Payment).
(c) To the extent that the aggregate amount of the Notes validly tendered and not validly withdrawn pursuant to an Asset Sale Offer is less than the Net Available CashCash Proceeds relating thereto, then the Company may use such Excess Proceeds, or a portion thereof, for general corporate purposes. Upon completion of an Asset Sale Offer, the Issuer may use any remaining amount of Net Available Cash for any purpose not prohibited by this Indenture. If Proceeds will be reset to zero.
(e) In the event the aggregate principal amount of the Notes surrendered in any Asset Sale Offer by the Holders exceeds the amount of Net Available CashCash Proceeds available to such Holders, the Net Available Cash shall be allocated among Company will select the Notes to be purchased on a pro rata basis on from all Notes so surrendered, with such adjustments as may be deemed appropriate by the basis Company so that only Notes in denominations of the aggregate principal amount of tendered Notes; provided that no Notes $1,000, or integral multiples thereof, will be selected and purchased in an unauthorized denominationpurchased. Additionally, the Issuer may, at its option, make an Asset Sale Offer using proceeds from any Asset Sale at any time after the consummation of such Asset Sale. Upon consummation or expiration of any Asset Sale Offer, any remaining Net Available Cash may be used by the Issuer 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 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 Issuer upon converting such portion into Dollars.
(i) For the purposes of Section 4.11(a)(iii), the following will be deemed to be cash:
(A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Issuer or a Subsidiary (other than Subordinated Indebtedness of the Issuer or a Guarantor) and the release of the Issuer or such Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Sale (to the extent the Issuer or such Subsidiary would have had continuing liability for such Indebtedness or other liability);
(B) securities, notes or other obligations received by the Issuer or any Subsidiary of the Issuer from the transferee that are converted by the Issuer or such Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Sale;
(C) Indebtedness or other liabilities of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that the Issuer and each other Subsidiary have no continuing liability for the payment of such Indebtedness or other liabilities in connection with such Asset Sale; and
(D) 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 Subsidiary.
(ii) Upon the commencement of an Asset Sale Offer, the Issuer shall send, or cause to be sent, by first class mail or electronically, a notice to the Trustee, the Collateral Trustee and to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Asset Sale Offer. Any Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(A) that the Asset Sale Offer is being made pursuant to this Section 4.11 and that, to the extent lawful, all Notes tendered and not withdrawn shall be accepted for payment (unless prorated);
(B) the Asset Sale payment amount, the Asset Sale offered price, and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and not later than 60 days from the date such notice is mailed (the “Asset Sale Payment Date”);
(C) that any Notes not tendered or accepted for payment shall continue to accrue interest in accordance with the terms thereof;
(D) that, unless the Issuer defaults in making such payment, any Notes accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on and after the Asset Sale Payment Date;
(E) that Holders electing to have any Notes purchased pursuant to any Asset Sale Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Trustee at the address specified in the notice at least three Business Days before the Asset Sale Payment Date;
(F) that Holders shall be entitled to withdraw their election if the Trustee receives, not later than three Business Days prior to the Asset Sale Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Note purchased;
(G) that if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale payment amount, the Trustee shall select the Notes to be purchased in the manner described under Section 16.02(d) of this Indenture; and
(H) that Holders whose Notes were are purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry)surrendered.
(iiif) 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 Not later than one Business Day prior to the Asset Sale Offer.
(iv) On Offer Date in connection with which the Asset Sale Payment DateOffer is being made, the Issuer will, to the extent permitted by law,
Company will (Ai) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Asset Sale Offer,
Offer (Bon a pro rata basis if required pursuant to this Indenture), (ii) deposit with the Trustee an amount equal Paying Agent money sufficient, in immediately available funds, to pay the aggregate Asset Sale payment in respect purchase price of all Notes or portions thereof so tenderedaccepted, and
and (Ciii) deliver, or cause to be delivered, deliver to the Trustee for cancellation Paying Agent an Officers' Certificate identifying the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased accepted for payment by the IssuerCompany. The Paying Agent will promptly mail or deliver to Holders of Notes so accepted payment in an amount equal to the Asset Sale Offer Price of the Notes purchased from each such Holder. Any Notes not so accepted will be promptly mailed or delivered by the Paying Agent at the Company's expense to the Holder thereof.
(eg) The Any Asset Sale Offer will be conducted by the Company will comply in compliance with the requirements applicable law, including, without limitation, Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 15.02 hereof or this Section 4.11Rule 14e-1 thereunder, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 15.02 hereof or this Section 4.11 by virtue of such complianceif applicable.
(f) For the avoidance of doubt, the provisions of this Indenture related to the Issuer’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes.
Appears in 2 contracts
Sources: Indenture (MDC Holdings Inc), Indenture (MDC Holdings Inc)
Limitations on Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an any Asset Sale, unless Sale unless: (i) the Company (or the Subsidiary, as the case may be) receives its Restricted Subsidiaries receive consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as fair market value of the date of the definitive agreement with respect to assets or Capital Stock included in such Asset Sale) of the assets, property or Capital Stock issued or sold or otherwise disposed of; (ii) no Default or Event of Default shall have occurred and be continuing at the time of the consummation of such Asset Sale or would be caused thereby and (iii) at least 75% aggregate fair market value of the consideration received from such Asset Sale is, or will be when paid (other than consideration in the form of assumption of Indebtedness of the Company or one or more of its Restricted Subsidiaries from which the Company or such Restricted Subsidiaries, as the case of milestonesmay be, royalties and other deferred payment obligations), are released) that is not in the form of cash or Cash Equivalents shall not, when aggregated with the fair market value of all other non-cash equivalents; provided that for purposes of this clause (iii), any Designated Nonor non-Cash Consideration Equivalent consideration received by the Company and its Restricted Subsidiaries from all previous Asset Sales since the date of this Indenture that have not yet been converted into cash or Cash Equivalents, exceed 5% of Consolidated Tangible Assets of the Company at the time of such Asset Sale; and (iii) if the aggregate fair market value of the assets or Capital Stock to be sold in such Asset Sale exceeds $3,000,000, such Asset Sale has been approved by the Company's Board of Directors.
(b) Within six months after consummation of any such Asset Sale (the Business Day closest to the end of such six-month period is referred to as the "Asset Sale Offer Date"), the Company shall, or shall cause the applicable Restricted Subsidiary in respect to: (i) reinvest the cash and Cash Equivalent portion of the Net Proceeds of such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-in a manner that would constitute a Related Business Investment; (ii) apply or cause to be applied the cash and Cash Consideration received pursuant to this clause (iii), not in excess of 25% Equivalent portion of the consideration received from Net Proceeds of such Asset Sale at the time to repay outstanding Senior Indebtedness of the receipt Company or any Restricted Subsidiary, provided, however, that any such repayment 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 Indebtedness under any revolving credit facility or similar agreement shall result in value, shall be deemed to be cash and (iv) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied to prepay, repay, redeem or repurchase the Notes as provided under Section 2.13 through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof plus the Interest-Make-Whole Payment) or by making an offer (in accordance with the procedures set forth in this Section 4.11 for an Asset Sale Offer) to all Holders of the Notes to purchase their Notes at 100% of the principal amount thereof plus the Interest-Make-Whole Payment, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes that would otherwise be prepaid; provided that, if the Issuer makes an offer to purchase the Notes pursuant to the foregoing proviso, the Issuer will be deemed to have satisfied its obligations under this clause (iv) and any amounts remaining after such offer to purchase will not be counted a permanent reduction in the computation of Net Available Cash; provided further that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause (iv), the Issuer or Subsidiary will retire such Indebtedness and will cause the related lending commitment (if any) to be reduced relating thereto in an amount equal to the principal amount so prepaid, repaid, redeemed ; or repurchased.
(biii) On apply or cause to be applied the 30th day after an Asset Sale or the receipt of such Net Available Cash, the Issuer will be required to make an offer (“Asset Sale Offer”) to all Holders of the Notes to purchase the maximum principal amount of the Notes that may be purchased out cash and Cash Equivalent portion of the Net Available Cash Proceeds of such Asset Sale that is neither reinvested as provided in clause (i) nor applied to the repayment of Senior Indebtedness as provided in clause (ii), first to the purchase of Existing Notes tendered to the ----- Company at an offer a purchase price in an amount equal to 100% of the principal amount of the Notes plus the Interest Make-Whole Paymentthereof, plus accrued and unpaid interest, if any, to, but not including, thereon to the date of purchase, in accordance with pursuant to an offer to purchase made by the procedures Company as set forth in Article 3 and Section 5.09 of the Indenture for the Existing Notes and this Indenture in minimum denominations of $1,000 and integral multiples of $1,000 in excess thereof. The Issuer will deliver notice of such (an "Asset Sale Offer electronically or by first-class mail, with a copy Offer") and second to the Trustee, purchase of Notes tendered to each Holder of the Notes Company ------ at the address of such Holder appearing in the register or otherwise in accordance with the applicable procedures of the Depositary, describing the transaction or transactions that constitute the Asset Sale and offering to repurchase the Notes for the specified a purchase price on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by this Indenture and described in such notice. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Sale by making an Asset Sale Offer with respect to all Net Available Cash prior to the expiration of the relevant 30 days (or such longer period provided above) or with respect to any unapplied Net Available Cash. Notwithstanding the foregoing, in the case of any Asset Sale consisting of the Disposition of Designated U.S. Assets, any related Asset Sale Offer shall be at an offer price in an amount equal to 100% of the principal amount of the Notesthereof, plus accrued and unpaid interest, if any, to, but not including, thereon to the date of purchase (without any Interest Make-Whole Payment).
(c) To the extent that the aggregate amount of the Notes validly tendered and not validly withdrawn pursuant to an Asset Sale Offer is less than the Net Available Cashpurchase, the Issuer may use any remaining Net Available Cash for any purpose not prohibited by this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Sale Offer by Holders exceeds the amount of Net Available Cash, the Net Available Cash shall be allocated among the Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes; provided that no Notes will be selected and purchased in an unauthorized denomination. Additionally, the Issuer may, at its option, make an Asset Sale Offer using proceeds from any Asset Sale at any time after the consummation of such Asset Sale. Upon consummation or expiration of any Asset Sale Offer, any remaining Net Available Cash may be used by the Issuer 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 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 Issuer upon converting such portion into Dollars.
(i) For the purposes of Section 4.11(a)(iii), the following will be deemed to be cash:
(A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Issuer or a Subsidiary (other than Subordinated Indebtedness of the Issuer or a Guarantor) and the release of the Issuer or such Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Sale (to the extent the Issuer or such Subsidiary would have had continuing liability for such Indebtedness or other liability);
(B) securities, notes or other obligations received by the Issuer or any Subsidiary of the Issuer from the transferee that are converted by the Issuer or such Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Sale;
(C) Indebtedness or other liabilities of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that the Issuer and each other Subsidiary have no continuing liability for the payment of such Indebtedness or other liabilities in connection with such Asset Sale; and
(D) 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 Subsidiary.
(ii) Upon the commencement of an Asset Sale Offer, the Issuer shall send, or cause to be sent, by first class mail or electronically, a notice to the Trustee, the Collateral Trustee and to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Asset Sale Offer. Any Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(A) that the Asset Sale Offer is being made pursuant to this Section 4.11 and that, to the extent lawful, all Notes tendered and not withdrawn shall be accepted for payment (unless prorated);
(B) the Asset Sale payment amount, the Asset Sale offered price, and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and not later than 60 days from the date such notice is mailed (the “Asset Sale Payment Date”);
(C) that any Notes not tendered or accepted for payment shall continue to accrue interest in accordance with the terms thereof;
(D) that, unless the Issuer defaults in making such payment, any Notes accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on and after the Asset Sale Payment Date;
(E) that Holders electing to have any Notes purchased pursuant to any Asset Sale Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Trustee at the address specified in the notice at least three Business Days before the Asset Sale Payment Date;
(F) that Holders shall be entitled to withdraw their election if the Trustee receives, not later than three Business Days prior to the Asset Sale Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Note purchased;
(G) that if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale payment amount, the Trustee shall select the Notes to be purchased in the manner described under Section 16.02(d) of this Indenture; and
(H) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry).
(iii) 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 Sale Offer.
(iv) On the Asset Sale Payment Date, the Issuer will, to the extent permitted by law,
(A) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Asset Sale Offer,
(B) deposit with the Trustee an amount equal to the aggregate Asset Sale payment in respect of all Notes or portions thereof so tendered, and
(C) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer.
(e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To ; provided, however, that the Company may defer the Asset Sale Offer until the amount subject thereto would be at least $5,000,000.
(c) Notwithstanding the provisions of Sections 5.09(a) and 5.09(b): (i) to the extent that any or all of the Net Proceeds of any Foreign Asset Sale are prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Proceeds so affected will not be required to be applied in the manner set forth in this Section 5.09 but 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 cause the applicable Foreign Subsidiary promptly to take all actions required by the applicable local law to permit such repatriation) and, once such repatriation of any of such affected Net Proceeds is permitted under the applicable local law, such repatriation will be immediately effected and such repatriated Net Proceeds will be applied in the manner set forth in this Section 5.09; and (ii) to the extent that the provisions Board of Directors has determined in good faith that repatriation of any securities laws or regulations conflict with all of the provisions Net Proceeds of Section 15.02 hereof or this Section 4.11any Foreign Asset Sale would have a material adverse tax consequence, the Company will comply with Net Proceeds so affected may be retained by the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 15.02 hereof or this Section 4.11 by virtue of Foreign Subsidiary for so long as such compliancematerial adverse tax consequence would continue.
(f) For the avoidance of doubt, the provisions of this Indenture related to the Issuer’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes.
Appears in 2 contracts
Sources: Indenture (Icf Kaiser International Inc), Indenture (Systems Applications International Inc)
Limitations on Asset Sales. (a) The Company will not, and will not permit consummate any of its Subsidiaries to, consummate an Asset Sale, unless (i) the consideration received by the Company (or the Subsidiary, as the case may be) receives consideration at the time of the Asset Sale is at least equal to the Fair Market Value of the assets sold or disposed of and (measured ii) at least 90% of the consideration received consists of cash or Temporary Cash Investments or the assumption of indebtedness of the Company (other than Indebtedness to any Subsidiary), provided that (a) the Person assuming such Indebtedness is a corporation, limited liability company, partnership or trust organized under the laws of the United States or any State or the District of Columbia and expressly assumes the Indebtedness obligations under this Agreement and the Notes, (b) immediately after such transaction, such assuming Person is not in default in the performance of any covenants or conditions contained in the Senior Indenture, the Senior Loan Agreement, the Senior 2009 Notes Agreement, this Agreement and/or Notes, (c) the Person assuming the Indebtedness must be rated at least investment grade by both ▇▇▇▇▇’▇ (which as of the date of this Agreement is at least Baa3) and S&P (which as of the definitive agreement date of this Agreement is at least BBB-) and with a stable outlook with respect to each such Asset Sale) rating prior to and immediately after such assumption of Indebtedness and the assetsCompany, property or Capital Stock issued or sold or otherwise disposed of; (ii) no Default or Event of Default shall have occurred and be continuing at the time of prior to the consummation of any such Asset Sale assumption of Indebtedness, shall deliver, or would shall cause to be delivered, to each holder of Notes satisfactory evidence of such ratings and stable outlook, (d) such Person shall have caused thereby to be delivered to each holder of any Notes an opinion of nationally recognized independent counsel, or other independent counsel reasonably satisfactory to the Required Holders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof and (iiie) at least 75% the Company is irrevocably and unconditionally released from all liability under such Indebtedness. In the event and to the extent that the Company receives Net Cash Proceeds from one or more Asset Sales occurring on or after the date of the consideration received from such Asset Sale isClosing, or will be when paid (in the case of milestones, royalties and other deferred payment obligations), in the form of cash or cash equivalents; provided that for purposes of this clause (iii), any Designated Non-Cash Consideration received by the Company or such Subsidiary in respect of such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii), not in excess of 25% of the consideration received from such Asset Sale at the time of shall within six months after the receipt of such Designated Non-Net 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 and Proceeds:
(ivA) apply an amount equal to 100% the Pro Rata Portion of such Net Cash Proceeds to consummate an Offer to Purchase Notes owing to a Person (other than the Net Available Cash from such Asset Sale is applied Company, any of its Partners or any of their respective Affiliates) at a purchase price equal to prepay, repay, redeem or repurchase the Notes as provided under Section 2.13 through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof plus the Interest-Make-Whole Payment) or by making an offer (in accordance with the procedures set forth in this Section 4.11 for an Asset Sale Offer) to all Holders of the Notes to purchase their Notes at 100% of the principal amount thereof plus the Interest-Make-Whole Payment, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes that would otherwise be prepaid; provided that, if the Issuer makes an offer to purchase the Notes pursuant to the foregoing proviso, the Issuer will be deemed to have satisfied its obligations under this clause (iv) and any amounts remaining after such offer to purchase will not be counted in the computation of Net Available Cash; provided further that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause (iv), the Issuer or Subsidiary will retire such Indebtedness and will cause the related commitment interest (if any) to be reduced in an amount equal to the principal amount so prepaid, repaid, redeemed or repurchased.
(b) On the 30th day after an Asset Sale or the receipt of such Net Available Cash, the Issuer will be required to make an offer (“Asset Sale Offer”) to all Holders of the Notes to purchase the maximum principal amount of the Notes that may be purchased out of the Net Available Cash at an offer price in an amount equal to 100% of the principal amount of the Notes plus the Interest Make-Whole Payment, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture in minimum denominations of $1,000 and integral multiples of $1,000 in excess thereof. The Issuer will deliver notice of such Asset Sale Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of the Notes at the address of such Holder appearing in the register or otherwise in accordance with the applicable procedures of the Depositary, describing the transaction or transactions that constitute the Asset Sale and offering to repurchase the Notes for the specified purchase price on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by this Indenture and described in such notice. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Sale by making an Asset Sale Offer with respect to all Net Available Cash prior to the expiration of the relevant 30 days (or such longer period provided above) or with respect to any unapplied Net Available Cash. Notwithstanding the foregoing, in the case of any Asset Sale consisting of the Disposition of Designated U.S. Assets, any related Asset Sale Offer shall be at an offer price in an amount equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest, if any, to, but not including, the date of purchase (without any Interest Make-Whole Payment).
(c) To the extent that the aggregate amount of the Notes validly tendered and not validly withdrawn pursuant to an Asset Sale Offer is less than the Net Available Cash, the Issuer may use any remaining Net Available Cash for any purpose not prohibited by this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Sale Offer by Holders exceeds the amount of Net Available Cash, the Net Available Cash shall be allocated among the Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered NotesOTP Payment Date; provided that no Notes will be selected and purchased in an unauthorized denomination. Additionally, the Issuer may, at its option, make an Asset Sale Offer using proceeds from any Asset Sale at any time after the consummation of such Asset Sale. Upon consummation or expiration of any Asset Sale Offer, any remaining Net Available Cash may be used by the Issuer 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 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 Issuer upon converting such portion into Dollars.
(i) For the purposes of Section 4.11(a)(iii), the following will be deemed to be cash:
(A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Issuer or a Subsidiary (other than Subordinated Indebtedness of the Issuer or a Guarantor) and the release of the Issuer or such Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Sale (to the extent the Issuer or such Subsidiary would have had continuing liability for such Indebtedness or other liability);or
(B) securities, notes invest an equal amount or other obligations received by enter into a definitive agreement committing to so invest within 12 months after the Issuer or any Subsidiary of the Issuer from the transferee that are converted by the Issuer or such Subsidiary into cash or Cash Equivalents within 180 days following the closing date of such Asset Sale;
(C) Indebtedness or other liabilities of any Subsidiary that is no longer a Subsidiary as a result of such Asset Saleagreement, to the extent that the Issuer and each other Subsidiary have no continuing liability for the payment of such Indebtedness or other liabilities in connection with such Asset Sale; and
(D) consideration consisting of Indebtedness of the Issuer Property (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Issuer or any Subsidiary.
(ii) Upon the commencement of an Asset Sale Offer, the Issuer shall send, or cause to be sent, by first class mail or electronically, a notice to the Trustee, the Collateral Trustee and to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Asset Sale Offer. Any Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(A) that the Asset Sale Offer is being made pursuant to this Section 4.11 and that, to the extent lawful, all Notes tendered and not withdrawn shall be accepted for payment (unless prorated);
(B) the Asset Sale payment amount, the Asset Sale offered price, and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and not later than 60 days from the date such notice is mailed (the “Asset Sale Payment Date”);
(C) that any Notes not tendered or accepted for payment shall continue to accrue interest in accordance with the terms thereof;
(D) that, unless the Issuer defaults in making such payment, any Notes accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on and after the Asset Sale Payment Date;
(E) that Holders electing to have any Notes purchased pursuant to any Asset Sale Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Trustee at the address specified in the notice at least three Business Days before the Asset Sale Payment Date;
(F) that Holders shall be entitled to withdraw their election if the Trustee receives, not later than three Business Days prior to the Asset Sale Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Note purchased;
(G) that if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale payment amount, the Trustee shall select the Notes to be purchased in the manner described under Section 16.02(dcurrent assets) of this Indenture; and
(H) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (a business or transferred by book-entry).
(iii) 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 Sale Offer.
(iv) On the Asset Sale Payment Date, the Issuer will, to the extent permitted by law,
(A) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Asset Sale Offer,
(B) deposit with the Trustee an amount equal to the aggregate Asset Sale payment in respect of all Notes or portions thereof so tendered, and
(C) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer.
(e) The Company will comply with businesses meeting the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable set forth in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 15.02 hereof or this Section 4.11, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 15.02 hereof or this Section 4.11 by virtue of such compliance10.8.
(f) For the avoidance of doubt, the provisions of this Indenture related to the Issuer’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes.
Appears in 1 contract
Limitations on Asset Sales. (a) The Company will not, and will not permit consummate any of its Subsidiaries to, consummate an Asset Sale, unless (i) the consideration received by the Company (or the Subsidiary, as the case may be) receives consideration at the time of the Asset Sale is at least equal to the Fair Market Value of the assets sold or disposed of and (measured ii) at least 90% of the consideration received consists of cash or Temporary Cash Investments or the assumption of Indebtedness of the Company (other than Indebtedness to any Subsidiary), provided that (a) the Person assuming such Indebtedness is a corporation, limited liability company, partnership or trust organized under the laws of the United States or any State or the District of Columbia and expressly assumes the Indebtedness obligations under this Agreement and the Notes, (b) immediately after such transaction, such assuming Person is not in default in the performance of any covenants or conditions contained in the Senior Indenture, this Agreement and/or Notes, (c) the Person assuming the Indebtedness must be rated at least investment grade by both ▇▇▇▇▇’▇ (which as of the date of this Agreement is at least Baa3) and S&P (which as of the definitive agreement date of this Agreement is at least BBB-) and with a stable outlook with respect to each such Asset Sale) rating prior to and immediately after such assumption of Indebtedness and the assetsCompany, property or Capital Stock issued or sold or otherwise disposed of; (ii) no Default or Event of Default shall have occurred and be continuing at the time of prior to the consummation of any such Asset Sale assumption of Indebtedness, shall deliver, or would shall cause to be delivered, to each holder of Notes satisfactory evidence of such ratings and stable outlook, (d) such Person shall have caused thereby to be delivered to each holder of any Notes an opinion of nationally recognized independent counsel, or other independent counsel reasonably satisfactory to the Required Holders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof and (iiie) at least 75% the Company is irrevocably and unconditionally released from all liability under such Indebtedness. In the event and to the extent that the Company receives Net Cash Proceeds from one or more Asset Sales occurring on or after the date of the consideration received from such Asset Sale isClosing, or will be when paid (in the case of milestones, royalties and other deferred payment obligations), in the form of cash or cash equivalents; provided that for purposes of this clause (iii), any Designated Non-Cash Consideration received by the Company or such Subsidiary in respect of such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii), not in excess of 25% of the consideration received from such Asset Sale at the time of shall within six months after the receipt of such Designated Non-Net 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 and Proceeds:
(ivA) apply an amount equal to 100% the Pro Rata Portion of such Net Cash Proceeds to consummate an Offer to Purchase Notes owing to a Person (other than the Net Available Cash from such Asset Sale is applied Company, any of its Partners or any of their respective Affiliates) at a purchase price equal to prepay, repay, redeem or repurchase the Notes as provided under Section 2.13 through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof plus the Interest-Make-Whole Payment) or by making an offer (in accordance with the procedures set forth in this Section 4.11 for an Asset Sale Offer) to all Holders of the Notes to purchase their Notes at 100% of the principal amount thereof plus the Interest-Make-Whole Payment, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes that would otherwise be prepaid; provided that, if the Issuer makes an offer to purchase the Notes pursuant to the foregoing proviso, the Issuer will be deemed to have satisfied its obligations under this clause (iv) and any amounts remaining after such offer to purchase will not be counted in the computation of Net Available Cash; provided further that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause (iv), the Issuer or Subsidiary will retire such Indebtedness and will cause the related commitment interest (if any) to be reduced in an amount equal to the principal amount so prepaid, repaid, redeemed or repurchased.
(b) On the 30th day after an Asset Sale or the receipt of such Net Available Cash, the Issuer will be required to make an offer (“Asset Sale Offer”) to all Holders of the Notes to purchase the maximum principal amount of the Notes that may be purchased out of the Net Available Cash at an offer price in an amount equal to 100% of the principal amount of the Notes plus the Interest Make-Whole Payment, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture in minimum denominations of $1,000 and integral multiples of $1,000 in excess thereof. The Issuer will deliver notice of such Asset Sale Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of the Notes at the address of such Holder appearing in the register or otherwise in accordance with the applicable procedures of the Depositary, describing the transaction or transactions that constitute the Asset Sale and offering to repurchase the Notes for the specified purchase price on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by this Indenture and described in such notice. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Sale by making an Asset Sale Offer with respect to all Net Available Cash prior to the expiration of the relevant 30 days (or such longer period provided above) or with respect to any unapplied Net Available Cash. Notwithstanding the foregoing, in the case of any Asset Sale consisting of the Disposition of Designated U.S. Assets, any related Asset Sale Offer shall be at an offer price in an amount equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest, if any, to, but not including, the date of purchase (without any Interest Make-Whole Payment).
(c) To the extent that the aggregate amount of the Notes validly tendered and not validly withdrawn pursuant to an Asset Sale Offer is less than the Net Available Cash, the Issuer may use any remaining Net Available Cash for any purpose not prohibited by this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Sale Offer by Holders exceeds the amount of Net Available Cash, the Net Available Cash shall be allocated among the Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered NotesOTP Payment Date; provided that no Notes will be selected and purchased in an unauthorized denomination. Additionally, the Issuer may, at its option, make an Asset Sale Offer using proceeds from any Asset Sale at any time after the consummation of such Asset Sale. Upon consummation or expiration of any Asset Sale Offer, any remaining Net Available Cash may be used by the Issuer 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 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 Issuer upon converting such portion into Dollars.
(i) For the purposes of Section 4.11(a)(iii), the following will be deemed to be cash:
(A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Issuer or a Subsidiary (other than Subordinated Indebtedness of the Issuer or a Guarantor) and the release of the Issuer or such Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Sale (to the extent the Issuer or such Subsidiary would have had continuing liability for such Indebtedness or other liability);or
(B) securities, notes invest an equal amount or other obligations received by enter into a definitive agreement committing to so invest within 12 months after the Issuer or any Subsidiary of the Issuer from the transferee that are converted by the Issuer or such Subsidiary into cash or Cash Equivalents within 180 days following the closing date of such Asset Sale;
(C) Indebtedness or other liabilities of any Subsidiary that is no longer a Subsidiary as a result of such Asset Saleagreement, to the extent that the Issuer and each other Subsidiary have no continuing liability for the payment of such Indebtedness or other liabilities in connection with such Asset Sale; and
(D) consideration consisting of Indebtedness of the Issuer Property (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Issuer or any Subsidiary.
(ii) Upon the commencement of an Asset Sale Offer, the Issuer shall send, or cause to be sent, by first class mail or electronically, a notice to the Trustee, the Collateral Trustee and to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Asset Sale Offer. Any Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(A) that the Asset Sale Offer is being made pursuant to this Section 4.11 and that, to the extent lawful, all Notes tendered and not withdrawn shall be accepted for payment (unless prorated);
(B) the Asset Sale payment amount, the Asset Sale offered price, and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and not later than 60 days from the date such notice is mailed (the “Asset Sale Payment Date”);
(C) that any Notes not tendered or accepted for payment shall continue to accrue interest in accordance with the terms thereof;
(D) that, unless the Issuer defaults in making such payment, any Notes accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on and after the Asset Sale Payment Date;
(E) that Holders electing to have any Notes purchased pursuant to any Asset Sale Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Trustee at the address specified in the notice at least three Business Days before the Asset Sale Payment Date;
(F) that Holders shall be entitled to withdraw their election if the Trustee receives, not later than three Business Days prior to the Asset Sale Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Note purchased;
(G) that if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale payment amount, the Trustee shall select the Notes to be purchased in the manner described under Section 16.02(dcurrent assets) of this Indenture; and
(H) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (a business or transferred by book-entry).
(iii) 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 Sale Offer.
(iv) On the Asset Sale Payment Date, the Issuer will, to the extent permitted by law,
(A) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Asset Sale Offer,
(B) deposit with the Trustee an amount equal to the aggregate Asset Sale payment in respect of all Notes or portions thereof so tendered, and
(C) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer.
(e) The Company will comply with businesses meeting the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable set forth in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 15.02 hereof or this Section 4.11, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 15.02 hereof or this Section 4.11 by virtue of such compliance10.8.
(f) For the avoidance of doubt, the provisions of this Indenture related to the Issuer’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes.
Appears in 1 contract
Limitations on Asset Sales. (a) The Company will not, and will not permit any of its Subsidiaries to, consummate an Asset Sale, unless (i) the Company (or the Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets, property or Capital Stock issued or sold or otherwise disposed of; (ii) no Default or Event of Default shall have occurred and be continuing at the time of the consummation of such Asset Sale or would be caused thereby and (iii) at least 75% of the consideration received from such Asset Sale is, or will be when paid (in the case of milestones, royalties and other deferred payment obligations), in the form of cash or cash equivalents; provided that for purposes of this clause (iii), any Designated Non-Cash Consideration received by the Company or such Subsidiary in respect of such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii), not in excess of 25% of the consideration received from such Asset Sale at the time of the receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash and (iv) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied to prepay, repay, redeem or repurchase the Notes as provided under Section 2.13 2.10 through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof plus the Interest-Make-Whole Payment) or by making an offer (in accordance with the procedures set forth in this Section 4.11 for an Asset Sale Offer) to all Holders of the Notes to purchase their Notes at 100% of the principal amount thereof plus the Interest-MakeInterest -Make-Whole Payment, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes that would otherwise be prepaid; provided that, if the Issuer makes an offer to purchase the Notes pursuant to the foregoing proviso, the Issuer will be deemed to have satisfied its obligations under this clause (iv) and any amounts remaining after such offer to purchase will not be counted in the computation of Net Available Cash; provided further that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause (iv), the Issuer or 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 repurchased.
(b) On the 30th day after an Asset Sale or the receipt of such Net Available Cash, the Issuer will be required to make an offer (“Asset Sale Offer”) to all Holders of the Notes to purchase the maximum principal amount of the Notes that may be purchased out of the Net Available Cash at an offer price in an amount equal to 100% of the principal amount of the Notes plus the Interest Make-Whole Payment, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture in minimum denominations of $1,000 and integral multiples of $1,000 in excess thereof. The Issuer will deliver notice of such Asset Sale Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of the Notes at the address of such Holder appearing in the register or otherwise in accordance with the applicable procedures of the Depositary, describing the transaction or transactions that constitute the Asset Sale and offering to repurchase the Notes for the specified purchase price on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by this Indenture and described in such notice. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Sale by making an Asset Sale Offer with respect to all Net Available Cash prior to the expiration of the relevant 30 days (or such longer period provided above) or with respect to any unapplied Net Available Cash. Notwithstanding the foregoing, in the case of any Asset Sale consisting of the Disposition of Designated U.S. Assets, any related Asset Sale Offer shall be at an offer price in an amount equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest, if any, to, but not including, the date of purchase (without any Interest Make-Whole Payment).
(c) To the extent that the aggregate amount of the Notes validly tendered and not validly withdrawn pursuant to an Asset Sale Offer is less than the Net Available Cash, the Issuer may use any remaining Net Available Cash for any purpose not prohibited by this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Sale Offer by Holders exceeds the amount of Net Available Cash, the Net Available Cash shall be allocated among the Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes; provided that no Notes will be selected and purchased in an unauthorized denomination. Additionally, the Issuer may, at its option, make an Asset Sale Offer using proceeds from any Asset Sale at any time after the consummation of such Asset Sale. Upon consummation or expiration of any Asset Sale Offer, any remaining Net Available Cash may be used by the Issuer 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 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 Issuer upon converting such portion into Dollars.
(i) For the purposes of Section 4.11(a)(iii), the following will be deemed to be cash:
(A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Issuer or a Subsidiary (other than Subordinated Indebtedness of the Issuer or a Guarantor) and the release of the Issuer or such Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Sale (to the extent the Issuer or such Subsidiary would have had continuing liability for such Indebtedness or other liability);
(B) securities, notes or other obligations received by the Issuer or any Subsidiary of the Issuer from the transferee that are converted by the Issuer or such Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Sale;
(C) Indebtedness or other liabilities of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that the Issuer and each other Subsidiary have no continuing liability for the payment of such Indebtedness or other liabilities in connection with such Asset Sale; and
(D) 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 Subsidiary.
(ii) Upon the commencement of an Asset Sale Offer, the Issuer shall send, or cause to be sent, by first class mail or electronically, a notice to the Trustee, the Collateral Trustee Agent and to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Asset Sale Offer. Any Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(A) that the Asset Sale Offer is being made pursuant to this Section 4.11 and that, to the extent lawful, all Notes tendered and not withdrawn shall be accepted for payment (unless prorated);
(B) the Asset Sale payment amount, the Asset Sale offered price, and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and not later than 60 days from the date such notice is mailed (the “Asset Sale Payment Date”);
(C) that any Notes not tendered or accepted for payment shall continue to accrue interest in accordance with the terms thereof;
(D) that, unless the Issuer defaults in making such payment, any Notes accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on and after the Asset Sale Payment Date;
(E) that Holders electing to have any Notes purchased pursuant to any Asset Sale Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Trustee at the address specified in the notice at least three Business Days before the Asset Sale Payment Date;
(F) that Holders shall be entitled to withdraw their election if the Trustee receives, not later than three Business Days prior to the Asset Sale Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Note purchased;
(G) that if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale payment amount, the Trustee shall select the Notes to be purchased in the manner described under Section 16.02(d) 12.04] of this Indenture); and
(H) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry).
(iii) 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 Sale Offer.
(iv) On the Asset Sale Payment Date, the Issuer will, to the extent permitted by law,
(A) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Asset Sale Offer,
(B) deposit with the Trustee an amount equal to the aggregate Asset Sale payment in respect of all Notes or portions thereof so tendered, and
(C) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer.
(e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 15.02 hereof or this Section 4.11, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 15.02 hereof or this Section 4.11 by virtue of such compliance.
(f) For the avoidance of doubt, the provisions of this Indenture related to the Issuer’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes.
Appears in 1 contract
Limitations on Asset Sales. (a) The Company will not, and will not permit any of its Subsidiaries to, consummate an Asset Sale, unless (i) the Company (or the Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets, property or Capital Stock Equity Interests issued or sold or otherwise disposed of; (ii) no Default or Event of Default shall have occurred and be continuing at the time of the consummation of such Asset Sale or would be caused thereby and (iii) at least 75% of the consideration received from such Asset Sale (other than an Asset Sale consisting of the Specified Disposition (to which this clause (iii) shall not apply)) is, or will be when paid (in the case of milestones, royalties and other deferred payment obligations), in the form of cash or cash equivalents; provided that for purposes of this clause (iii), any Designated Non-Cash Consideration received by the Company or such Subsidiary in respect of such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii), not in excess of 25% of the consideration received from such Asset Sale at the time of the receipt of such Designated Non-Cash Consideration$250,000, 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 and (iv) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied to prepay, repay, redeem or repurchase the by purchasing (A) Notes as provided under Section 2.13 2.10 through open market purchases (to the extent such purchases are at a purchase price at or above 100% of the principal amount Then Current Principal Amount thereof plus the Interest-Interest Make-Whole PaymentPayment (calculated as set forth in Section 4.11(b)) (it being understood and agreed that the Net Available Cash shall be reduced by the aggregate amount of funds so paid in connection with such open market purchases) or by making (B) Notes tendered in an offer made by the Company (in accordance with the procedures set forth in this Section 4.11 for an Asset Sale Offer) to all Holders of the Notes to purchase their the maximum Original Principal Amount of the Notes that may be purchased with such Net Available Cash at an offer price in an amount equal to 100% of the principal amount Then Current Principal Amount thereof plus the Interest-Interest Make-Whole Payment, Payment (calculated as set forth in Section 4.11(b)) plus the amount of accrued but unpaid interest, if any, on thereon to, but excluding, the principal amount date of the Notes that would otherwise be prepaidpurchase; provided that, if the Issuer makes an offer to purchase the Notes pursuant to the foregoing proviso, the Issuer will be deemed to have satisfied its obligations under this clause (iv) and any amounts remaining after such offer to purchase will not be counted in the computation of Net Available Cash; provided further that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness Notes pursuant to this clause (iv), the Issuer will deliver, or Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be reduced in an amount equal delivered, to the principal amount Trustee for cancellation the Notes so prepaid, repaid, redeemed or repurchasedpurchased.
(b) On the 30th day after an Asset Sale or the receipt amount of such unapplied Net Available CashCash exceeds $2,000,000, the Issuer will be required to make an offer (“Asset Sale Offer”) to all Holders of the Notes to purchase the maximum principal amount Original Principal Amount of the Notes that may be purchased out of the Net Available Cash at an offer price in an amount equal to 100% of the principal amount Then Current Principal Amount of the Notes plus the Interest Make-Whole PaymentPayment (calculated as of the date of such purchase, determined by the Issuer as if such purchase were a conversion of the Notes under Section 14.02(i) on the date of such purchase) plus accrued and unpaid interest, if any, thereon to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture in minimum denominations of $1,000 and integral multiples of $1,000 in excess thereofIndenture. The In connection with an Asset Sale Offer, the Issuer will deliver written notice of such Asset Sale Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of the Notes at the address of such Holder appearing in the register or otherwise in accordance with the applicable procedures of the Depositary, describing the transaction or transactions that constitute the Asset Sale 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 as required by this Indenture and described in such noticeunder Section 4.11(f). The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Sale by making an Asset Sale Offer with respect to all Net Available Cash prior to the expiration of the relevant 30 days (or such longer period provided above) or with respect to any unapplied Net Available Cash. Notwithstanding the foregoing, in the case of any Asset Sale consisting of the Disposition of Designated U.S. Assets, any related Asset Sale Offer shall be at an offer price in an amount equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest, if any, to, but not including, the date of purchase (without any Interest Make-Whole Payment).
(c) To the extent that the aggregate amount of the Notes validly tendered and not validly withdrawn pursuant to an Asset Sale Offer is less than the Net Available Cash, the Issuer may use any remaining Net Available Cash for any purpose not prohibited by this Indenture. If the aggregate principal amount Then Current Principal Amount of the Notes surrendered in any Asset Sale Offer by Holders exceeds the maximum amount of Net Available CashCash to be applied in such Asset Sale Offer, the Net Available Cash shall be allocated among the Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount Original Principal Amount of tendered Notes; provided that no Notes will be selected and purchased in an unauthorized denomination. Additionally, the Issuer may, at its option, make an Asset Sale Offer using proceeds from any Asset Sale at any time after the consummation of such Asset Sale. Upon consummation or expiration of any Asset Sale Offer, any remaining Net Available Cash may be used by the Issuer 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 DollarsU.S. dollars, the amount thereof payable in respect of the Notes shall not exceed the net amount of funds in Dollars U.S. dollars that is actually received by the Issuer upon converting such portion into DollarsU.S. dollars.
(ie) For the purposes of Section 4.11(a)(iii), the following will be deemed to be cashcash with respect to any Asset Sale:
(Ai) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Issuer or a Subsidiary (other than Subordinated Indebtedness of the Issuer or a Guarantor) and the release of the Issuer or such Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Sale (to the extent the Issuer or such Subsidiary would have had continuing liability for such Indebtedness or other liability);
(Bii) securities, notes or other obligations received by the Issuer or any Subsidiary of the Issuer from the transferee that are converted by the Issuer or such Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Sale;
(Ciii) Indebtedness or other liabilities of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that the Issuer and each other Subsidiary have no continuing liability for the payment of such Indebtedness or other liabilities in connection with such Asset Sale; and
(Div) 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 Subsidiary.
(iif) Upon the commencement of an any Asset Sale Offer, the Issuer shall send, or cause to be sent, by first class mail or electronically, a notice to the Trustee, the Collateral Trustee Agent and to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the such Asset Sale Offer. Any Such Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the such Asset Sale Offer, shall state:
(Ai) that the such Asset Sale Offer is being made pursuant to this Section 4.11 and that, to the extent lawful, all Notes tendered and not withdrawn shall be accepted for payment (unless prorated);
(Bii) the maximum amount of Net Available Cash to be applied in such Asset Sale payment amountOffer, the Asset Sale offered offer price, and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and not later than 60 days from the date such notice is mailed (the “Asset Sale Payment Date”);
(Ciii) that any Notes not tendered or accepted for payment shall continue to accrue interest in accordance with the terms thereof;
(Div) that, unless the Issuer defaults in making such payment, any Notes accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on and after the Asset Sale Payment Date;
(Ev) that Holders electing to have any Notes purchased pursuant to any Asset Sale Offer shall be required to surrender the Notes, with the form entitled “Form of Option of Holder to Elect Purchase” on the reverse of the Note Purchase completed, to the Issuer, a Paying Agent or the Trustee at the address specified in the notice at least three Business Days before the Asset Sale Payment Date, or a Paying Agent at the address specified in the notice at least three (3) Business Days before the Asset Sale Payment Date;
(Fvi) that Holders shall be entitled to withdraw their election if the Issuer, a Paying Agent or the Trustee receives, not later than three Business Days prior to the Asset Sale Payment Date, a notice setting forth the name of the Holder, the principal amount Original Principal Amount of the Note the Holder delivered for purchase and a statement that such Holder ▇▇▇▇▇▇ is withdrawing its election to have such Note purchased;
(Gvii) that if the aggregate principal amount Then Current Principal Amount of Notes surrendered by Holders pursuant to any Asset Sale Offer exceeds the maximum amount of Net Available Cash to be applied in such Asset Sale payment amountOffer, the Trustee Notes Registrar shall select the Notes to be purchased in the manner described under Section 16.02(d) of this Indenturepro rata, by lot or by such other method as the Notes Registrar shall deem fair and appropriate); and
(Hviii) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount Original Principal Amount to the unpurchased portion of the Original Principal Amount of the Notes surrendered (or transferred by book-entry)surrendered.
(iiig) If the Asset Sale Payment Date related to any Asset Sale Offer is on or after a record date an Interest Record Date and on or before the related interest payment dateInterest 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 dateInterest Record Date, and no additional interest shall be payable to Holders who tender Notes pursuant to the such Asset Sale Offer.
(ivh) On the Asset Sale Payment DateDate related to any Asset Sale Offer, the Issuer will, to the extent permitted by law,
(Ai) accept for payment all payment, on a pro rata basis to the extent necessary, the Notes issued by it or portions thereof properly tendered pursuant to the such Asset Sale Offer, and required to be purchased pursuant to this Section 4.11, or if the aggregate Then Current Principal Amount of Notes tendered by Holders pursuant to such Asset Sale Offer does not exceed the maximum amount of Net Available Cash to be applied in such Asset Sale Offer, all Notes tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.11,
(Bii) deposit with the Trustee Paying Agent an amount equal to the aggregate Asset Sale payment purchase price amount in respect of all Notes or portions thereof so tenderedtendered and accepted by the Company for purchase and the Trustee will promptly (but in any case not later than five days after the Asset Sale Payment Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and
(Ciii) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer.
(ei) If in any Asset Sale Offer the aggregate Then Current Principal Amount of Notes tendered by Holders pursuant to such Asset Sale Offer exceeds the maximum amount of Net Available Cash to be applied in such Asset Sale Offer, the Company will promptly following the consummation of such Asset Sale Offer issue a new Note, and the Trustee, receipt of a Company Order, will authenticate and mail or deliver such new Note to such Holder, in an Original Principal Amount equal to any unpurchased portion of the Original Principal Amount the Note surrendered.
(j) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 15.02 hereof or this Section 4.11, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 15.02 hereof or this Section 4.11 by virtue of such compliance.
(fk) For the avoidance of doubt, the provisions of this Indenture related to the Issuer’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of the then outstanding NotesRequisite Holders.
Appears in 1 contract
Limitations on Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale, unless Sale (i) including the Company (or the Subsidiary, as the case may be) receives consideration at the time sale of any of the Asset Sale stock of any Subsidiary) unless at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets, property or Capital Stock issued or sold or otherwise disposed of; (ii) no Default or Event of Default shall have occurred and be continuing at the time of the consummation of such Asset Sale or would be caused thereby and (iii) at least 75% of the consideration received from such Asset Sale is, or will be when paid (in the case of milestones, royalties and other deferred payment obligations), in the form of cash or cash equivalents; provided that for purposes of this clause (iii), any Designated Non-Cash Consideration received by the Company or such Subsidiary in respect of such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii), not in excess of 25% of the consideration received from such Asset Sale at the time of the receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash and (iv) an amount equal to 100% of the Net Available Cash Proceeds from such Asset Sale is (or, in the case of a Partially Owned Restricted Subsidiary, the Company's Pro Rata Portion thereof, after repayment by such Partially Owned Restricted Subsidiary of its Indebtedness) are applied first to prepay, repay, redeem repay Obligations or repurchase reduce commitments under the Notes as provided under Section 2.13 through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof plus the Interest-Make-Whole Payment) or by making an offer (Credit Facilities in accordance with the procedures set forth terms thereof, second to offer to redeem at par the Outstanding Notes and third to offer to redeem at par the Securities. The foregoing application of Net Proceeds from Asset Sales is not required in the case of (i) sales or dispositions generating cash proceeds of less than, with respect to the Company, its Restricted Subsidiaries, $2.5 million and (ii) sales and dispositions as to which the Company delivers a reinvestment notice and the proceeds are so reinvested in one or more communications, publishing, information, education or media assets or businesses within twelve months of the date the relevant Asset Sale is consummated. Notwithstanding the foregoing provisions of this Section 4.11 for an 4.11, neither the Company nor its Subsidiaries shall be required to apply the Net Proceeds from any Asset Sale Offer(i) to all Holders of the Notes to purchase their Notes at 100% of extent that the principal amount thereof plus aggregate Net Proceeds from such Asset Sale, together with the Interest-Make-Whole Payment, plus the amount of accrued but unpaid interestNet Proceeds, if any, on of any other Asset Sale which have not been previously applied, are less than $25 million or (ii) to the principal amount of the Notes that would otherwise be prepaid; provided extent that, if the Issuer makes and for so long as, such Net Proceeds cannot be so applied as a result of an offer to purchase the Notes encumbrance or restriction permitted pursuant to the foregoing proviso, the Issuer will be deemed to have satisfied its obligations under this clause (iv) and any amounts remaining after such offer to purchase will not be counted in the computation of Net Available Cash; provided further that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause (iv), the Issuer or 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 repurchasedSection 4.13 hereof.
(b) On At least 15 days prior to the 30th day after an Asset Sale or Company's mailing of a notice of a Net Proceeds Offer, the receipt Company shall notify the Trustee of the Company's obligation to make such Net Available Cash, Proceeds Offer. Notice of a Net Proceeds Offer shall be mailed by the Issuer will be required Company not less than 30 Business Days nor more than 40 days before the Net Proceeds Payment Date to make an offer (“Asset Sale Offer”) to all the Holders of the Notes to purchase the maximum principal amount of the Notes that may be purchased out of the Net Available Cash Securities at an offer price in an amount equal to 100% of the principal amount of the Notes plus the Interest Make-Whole Payment, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture in minimum denominations of $1,000 and integral multiples of $1,000 in excess thereof. The Issuer will deliver notice of such Asset Sale Offer electronically or by first-class mail, their last registered addresses with a copy to the Trustee, to each Holder Trustee and the Paying Agent. The Net Proceeds Offer shall remain open from the time of mailing until the Notes at the address close of such Holder appearing in the register or otherwise in accordance with the applicable procedures of the Depositary, describing the transaction or transactions that constitute the Asset Sale and offering to repurchase the Notes for the specified purchase price business on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by this Indenture and described in such notice. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Sale by making an Asset Sale Offer with respect to all Net Available Cash Business Day prior to the expiration of the relevant 30 days (or such longer period provided above) or with respect to any unapplied Net Available Cash. Notwithstanding the foregoing, in the case of any Asset Sale consisting of the Disposition of Designated U.S. Assets, any related Asset Sale Offer shall be at an offer price in an amount equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest, if any, to, but not including, the date of purchase (without any Interest Make-Whole Payment).
(c) To the extent that the aggregate amount of the Notes validly tendered and not validly withdrawn pursuant to an Asset Sale Offer is less than the Net Available Cash, the Issuer may use any remaining Net Available Cash for any purpose not prohibited by this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Sale Offer by Holders exceeds the amount of Net Available Cash, the Net Available Cash shall be allocated among the Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes; provided that no Notes will be selected and purchased in an unauthorized denomination. Additionally, the Issuer may, at its option, make an Asset Sale Offer using proceeds from any Asset Sale at any time after the consummation of such Asset Sale. Upon consummation or expiration of any Asset Sale Offer, any remaining Net Available Cash may be used by the Issuer 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 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 Issuer upon converting such portion into Dollars.
(i) For the purposes of Section 4.11(a)(iii), the following will be deemed to be cash:
(A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Issuer or a Subsidiary (other than Subordinated Indebtedness of the Issuer or a Guarantor) and the release of the Issuer or such Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Sale (to the extent the Issuer or such Subsidiary would have had continuing liability for such Indebtedness or other liability);
(B) securities, notes or other obligations received by the Issuer or any Subsidiary of the Issuer from the transferee that are converted by the Issuer or such Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Sale;
(C) Indebtedness or other liabilities of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that the Issuer and each other Subsidiary have no continuing liability for the payment of such Indebtedness or other liabilities in connection with such Asset Sale; and
(D) 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 Subsidiary.
(ii) Upon the commencement of an Asset Sale Offer, the Issuer shall send, or cause to be sent, by first class mail or electronically, a notice to the Trustee, the Collateral Trustee and to each Holder at its registered addressProceeds Payment Date. The notice shall contain all instructions and materials necessary to enable such Holder Holders to tender Notes Securities pursuant to the Asset Sale Net Proceeds Offer. Any Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Net Proceeds Offer, shall state:
(A1) that the Asset Sale Net Proceeds Offer is being made pursuant to this Section 4.11 and that, to that the extent lawful, all Notes tendered and not withdrawn shall Securities will be accepted for payment on a pro rata basis (unless proratedrounded down to the nearest $1,000), if necessary;
(B2) the Asset Sale payment amount, the Asset Sale offered price, Purchase Price and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and not later than 60 days from the date such notice is mailed (the “Asset Sale Net Proceeds Payment Date”);
(C3) that any Notes Security not tendered or accepted for payment shall will continue to accrue interest in accordance with the terms thereofinterest;
(D4) that, unless the Issuer defaults in making such payment, that any Notes Security accepted for payment pursuant to the Asset Sale Net Proceeds Offer shall cease to accrue interest on and after the Asset Sale Net Proceeds Payment Date;
(E5) that Holders each Holder of a Security electing to have any Notes such Security purchased pursuant to any Asset Sale a Net Proceeds Offer shall will be required to surrender the NotesSecurity, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note Security completed, to the Trustee at the address specified in the notice at least three prior to the close of business on the Business Days before Day prior to the Asset Sale Net Proceeds Payment Date;
(F6) that Holders shall will be entitled to withdraw their election if the Trustee receives, not later than three the close of business on the fifth Business Days prior to Day next preceding the Asset Sale Net Proceeds Payment Date, a notice facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note Securities the Holder delivered for purchase and a statement that such Holder is withdrawing its his election to have such Note Securities purchased;
(G) that if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale payment amount, the Trustee shall select the Notes to be purchased in the manner described under Section 16.02(d) of this Indenture; and
(H7) that Holders whose Notes were Securities are purchased only in part shall will be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry).
(iii) If Securities surrendered. The Trustee shall notify 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 Company at the close opening of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant the Net Proceeds Payment Date as to the Asset Sale principal amount of each of the Securities or portions thereof which have been surrendered to the Trustee in connection with the Net Proceeds Offer.
(iv) . On the Asset Sale Net Proceeds Payment Date, the Issuer will, to the extent permitted by law,
Company shall (Ai) accept for payment all Notes issued by it on a pro rata basis (if necessary) Securities or portions thereof properly tendered pursuant to the Asset Sale Net Proceeds Offer,
, (Bii) deposit with the Paying Agent money sufficient to pay the purchase price of all Securities or portions thereof so accepted and (iii) deliver or cause to be delivered to the Trustee all Securities so accepted together with an Officers' Certificate stating the Securities or portions thereof accepted for payment by the Company and any other information that the Trustee may reasonably request in order to make the payments required to be made on the Net Proceeds Payment Date. The Paying Agent shall promptly mail to Holders of Securities so accepted, payment in an amount equal to the aggregate Asset Sale payment Purchase Price, and the Trustee shall promptly authenticate and mail to such Holders a new Security equal in respect principal amount to any unpurchased portion of all Notes or portions thereof the Security surrendered. Any Securities not so tendered, and
(C) deliver, or cause to accepted shall be delivered, promptly mailed by the Trustee to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer.
(e) Holder thereof. The Company will comply with publicly announce the requirements results of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to Net Proceeds Offer on or as soon as practicable after the extent those laws and regulations are applicable in connection with each repurchase Net Proceeds Payment Date. For purposes of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 15.02 hereof or this Section 4.11, the Company will comply with Trustee shall act as the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 15.02 hereof or this Section 4.11 by virtue of such compliancePaying Agent.
(f) For the avoidance of doubt, the provisions of this Indenture related to the Issuer’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Indenture (Vegeterian Times Inc)
Limitations on Asset Sales. (a) The Company will not, and will not permit any of its Subsidiaries to, consummate an Asset Sale, unless (i) the Company (or the Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets, property or Capital Stock Equity Interests issued or sold or otherwise disposed of; (ii) no Default or Event of Default shall have occurred and be continuing at the time of the consummation of such Asset Sale or would be caused thereby and (iii) at least 75% of the consideration received from such Asset Sale (other than an Asset Sale consisting of the Specified Disposition (to which this clause (iii) shall not apply)) is, or will be when paid (in the case of milestones, royalties and other deferred payment obligations), in the form of cash or cash equivalents; provided that for purposes of this clause (iii), any Designated Non-Cash Consideration received by the Company or such Subsidiary in respect of such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii), not in excess of 25% of the consideration received from such Asset Sale at the time of the receipt of such Designated Non-Cash Consideration$250,000, 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 and (iv) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied to prepay, repay, redeem or repurchase the by purchasing (A) Notes as provided under Section 2.13 2.10 through open market purchases (to the extent such purchases are at a purchase price at or above 100% of the principal amount Then Current Principal Amount thereof plus the Interest-Interest Make-Whole PaymentPayment (calculated as set forth in Section 4.11(b)) (it being understood and agreed that the Net Available Cash shall be reduced by the aggregate amount of funds so paid in connection with such open market purchases) or by making (B) Notes tendered in an offer made by the Company (in accordance with the procedures set forth in this Section 4.11 for an Asset Sale Offer) to all Holders of the Notes to purchase their the maximum Original Principal Amount of the Notes that may be purchased with such Net Available Cash at an offer price in an amount equal to 100% of the principal amount Then Current Principal Amount thereof plus the Interest-Interest Make-Whole Payment, Payment (calculated as set forth in Section 4.11(b)) plus the amount of accrued but unpaid interest, if any, on thereon to, but excluding, the principal amount date of the Notes that would otherwise be prepaidpurchase; provided that, if the Issuer makes an offer to purchase the Notes pursuant to the foregoing proviso, the Issuer will be deemed to have satisfied its obligations under this clause (iv) and any amounts remaining after such offer to purchase will not be counted in the computation of Net Available Cash; provided further that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness Notes pursuant to this clause (iv), the Issuer or 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 repurchased.
(b) On the 30th day after an Asset Sale or the receipt of such Net Available Cash, the Issuer will be required to make an offer (“Asset Sale Offer”) to all Holders of the Notes to purchase the maximum principal amount of the Notes that may be purchased out of the Net Available Cash at an offer price in an amount equal to 100% of the principal amount of the Notes plus the Interest Make-Whole Payment, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture in minimum denominations of $1,000 and integral multiples of $1,000 in excess thereof. The Issuer will deliver notice of such Asset Sale Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of the Notes at the address of such Holder appearing in the register or otherwise in accordance with the applicable procedures of the Depositary, describing the transaction or transactions that constitute the Asset Sale and offering to repurchase the Notes for the specified purchase price on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by this Indenture and described in such notice. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Sale by making an Asset Sale Offer with respect to all Net Available Cash prior to the expiration of the relevant 30 days (or such longer period provided above) or with respect to any unapplied Net Available Cash. Notwithstanding the foregoing, in the case of any Asset Sale consisting of the Disposition of Designated U.S. Assets, any related Asset Sale Offer shall be at an offer price in an amount equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest, if any, to, but not including, the date of purchase (without any Interest Make-Whole Payment).
(c) To the extent that the aggregate amount of the Notes validly tendered and not validly withdrawn pursuant to an Asset Sale Offer is less than the Net Available Cash, the Issuer may use any remaining Net Available Cash for any purpose not prohibited by this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Sale Offer by Holders exceeds the amount of Net Available Cash, the Net Available Cash shall be allocated among the Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes; provided that no Notes will be selected and purchased in an unauthorized denomination. Additionally, the Issuer may, at its option, make an Asset Sale Offer using proceeds from any Asset Sale at any time after the consummation of such Asset Sale. Upon consummation or expiration of any Asset Sale Offer, any remaining Net Available Cash may be used by the Issuer 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 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 Issuer upon converting such portion into Dollars.
(i) For the purposes of Section 4.11(a)(iii), the following will be deemed to be cash:
(A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Issuer or a Subsidiary (other than Subordinated Indebtedness of the Issuer or a Guarantor) and the release of the Issuer or such Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Sale (to the extent the Issuer or such Subsidiary would have had continuing liability for such Indebtedness or other liability);
(B) securities, notes or other obligations received by the Issuer or any Subsidiary of the Issuer from the transferee that are converted by the Issuer or such Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Sale;
(C) Indebtedness or other liabilities of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that the Issuer and each other Subsidiary have no continuing liability for the payment of such Indebtedness or other liabilities in connection with such Asset Sale; and
(D) 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 Subsidiary.
(ii) Upon the commencement of an Asset Sale Offer, the Issuer shall send, or cause to be sent, by first class mail or electronically, a notice to the Trustee, the Collateral Trustee and to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Asset Sale Offer. Any Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(A) that the Asset Sale Offer is being made pursuant to this Section 4.11 and that, to the extent lawful, all Notes tendered and not withdrawn shall be accepted for payment (unless prorated);
(B) the Asset Sale payment amount, the Asset Sale offered price, and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and not later than 60 days from the date such notice is mailed (the “Asset Sale Payment Date”);
(C) that any Notes not tendered or accepted for payment shall continue to accrue interest in accordance with the terms thereof;
(D) that, unless the Issuer defaults in making such payment, any Notes accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on and after the Asset Sale Payment Date;
(E) that Holders electing to have any Notes purchased pursuant to any Asset Sale Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Trustee at the address specified in the notice at least three Business Days before the Asset Sale Payment Date;
(F) that Holders shall be entitled to withdraw their election if the Trustee receives, not later than three Business Days prior to the Asset Sale Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Note purchased;
(G) that if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale payment amount, the Trustee shall select the Notes to be purchased in the manner described under Section 16.02(d) of this Indenture; and
(H) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry).
(iii) 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 Sale Offer.
(iv) On the Asset Sale Payment Date, the Issuer will, to the extent permitted by law,
(A) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Asset Sale Offer,
(B) deposit with the Trustee an amount equal to the aggregate Asset Sale payment in respect of all Notes or portions thereof so tendered, and
(C) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuerpurchased.
(e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 15.02 hereof or this Section 4.11, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 15.02 hereof or this Section 4.11 by virtue of such compliance.
(f) For the avoidance of doubt, the provisions of this Indenture related to the Issuer’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Fourth Supplemental Indenture (Rockley Photonics Holdings LTD)
Limitations on Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale, unless Sale (i) including the Company (or the Subsidiary, as the case may be) receives consideration at the time sale of any of the Asset Sale stock of any Subsidiary) unless at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets, property or Capital Stock issued or sold or otherwise disposed of; (ii) no Default or Event of Default shall have occurred and be continuing at the time of the consummation of such Asset Sale or would be caused thereby and (iii) at least 75% of the consideration received from such Asset Sale is, or will be when paid (in the case of milestones, royalties and other deferred payment obligations), in the form of cash or cash equivalents; provided that for purposes of this clause (iii), any Designated Non-Cash Consideration received by the Company or such Subsidiary in respect of such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii), not in excess of 25% of the consideration received from such Asset Sale at the time of the receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash and (iv) an amount equal to 100% of the Net Available Cash Proceeds from such Asset Sale is (or, in the case of a Partially Owned Restricted Subsidiary, the Company's Pro Rata Portion thereof, after repayment by such Partially Owned Restricted Subsidiary of its Indebtedness) are applied first to prepay, repay, redeem repay Obligations or repurchase reduce commitments under the Notes as provided under Section 2.13 through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof plus the Interest-Make-Whole Payment) or by making an offer (Credit Facilities in accordance with the procedures set forth terms thereof, second to offer to redeem at par the Outstanding Notes and third to offer to redeem at par the Securities. The foregoing application of Net Proceeds from Asset Sales is not required in the case of (i) sales or dispositions generating cash proceeds of less than, with respect to the Company, its Restricted Subsidiaries, $2.5 million and (ii) sales and dispositions as to which the Company delivers a reinvestment notice and the proceeds are so reinvested in one or more communications, publishing, information, education or media assets or businesses within twelve months of the date the relevant Asset Sale is consummated. Notwithstanding the foregoing provisions of this Section 4.11 for an 4.11, neither the Company nor its Subsidiaries shall be required to apply the Net Proceeds from any Asset Sale Offer(i) to all Holders of the Notes to purchase their Notes at 100% of extent that the principal amount thereof plus aggregate Net Proceeds from such Asset Sale, together with the Interest-Make-Whole Payment, plus the amount of accrued but unpaid interestNet Proceeds, if any, on of any other Asset Sale which have not been previously applied, are less than $25 million or (ii) to the principal amount of the Notes that would otherwise be prepaid; provided extent that, if the Issuer makes and for so long as, such Net Proceeds cannot be so applied as a result of an offer to purchase the Notes encumbrance or restriction permitted pursuant to the foregoing proviso, the Issuer will be deemed to have satisfied its obligations under this clause (iv) and any amounts remaining after such offer to purchase will not be counted in the computation of Net Available Cash; provided further that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause (iv), the Issuer or 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 repurchasedSection 4.13 hereof.
(b) On At least 15 days prior to the 30th day after an Asset Sale or Company's mailing of a notice of a Net Proceeds Offer, the receipt Company shall notify the Trustee of the Company's obligation to make such Net Available Cash, Proceeds Offer. Notice of a Net Proceeds Offer shall be mailed by the Issuer will be required Company not less than 30 Business Days nor more than 40 days before the Net Proceeds Payment Date to make an offer (“Asset Sale Offer”) to all the Holders of the Notes to purchase the maximum principal amount of the Notes that may be purchased out of the Net Available Cash Securities at an offer price in an amount equal to 100% of the principal amount of the Notes plus the Interest Make-Whole Payment, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture in minimum denominations of $1,000 and integral multiples of $1,000 in excess thereof. The Issuer will deliver notice of such Asset Sale Offer electronically or by first-class mail, their last registered addresses with a copy to the Trustee, to each Holder Trustee and the Paying Agent. The Net Proceeds Offer shall remain open from the time of mailing until the Notes at the address close of such Holder appearing in the register or otherwise in accordance with the applicable procedures of the Depositary, describing the transaction or transactions that constitute the Asset Sale and offering to repurchase the Notes for the specified purchase price business on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by this Indenture and described in such notice. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Sale by making an Asset Sale Offer with respect to all Net Available Cash Business Day prior to the expiration of the relevant 30 days (or such longer period provided above) or with respect to any unapplied Net Available Cash. Notwithstanding the foregoing, in the case of any Asset Sale consisting of the Disposition of Designated U.S. Assets, any related Asset Sale Offer shall be at an offer price in an amount equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest, if any, to, but not including, the date of purchase (without any Interest Make-Whole Payment).
(c) To the extent that the aggregate amount of the Notes validly tendered and not validly withdrawn pursuant to an Asset Sale Offer is less than the Net Available Cash, the Issuer may use any remaining Net Available Cash for any purpose not prohibited by this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Sale Offer by Holders exceeds the amount of Net Available Cash, the Net Available Cash shall be allocated among the Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes; provided that no Notes will be selected and purchased in an unauthorized denomination. Additionally, the Issuer may, at its option, make an Asset Sale Offer using proceeds from any Asset Sale at any time after the consummation of such Asset Sale. Upon consummation or expiration of any Asset Sale Offer, any remaining Net Available Cash may be used by the Issuer 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 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 Issuer upon converting such portion into Dollars.
(i) For the purposes of Section 4.11(a)(iii), the following will be deemed to be cash:
(A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Issuer or a Subsidiary (other than Subordinated Indebtedness of the Issuer or a Guarantor) and the release of the Issuer or such Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Sale (to the extent the Issuer or such Subsidiary would have had continuing liability for such Indebtedness or other liability);
(B) securities, notes or other obligations received by the Issuer or any Subsidiary of the Issuer from the transferee that are converted by the Issuer or such Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Sale;
(C) Indebtedness or other liabilities of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that the Issuer and each other Subsidiary have no continuing liability for the payment of such Indebtedness or other liabilities in connection with such Asset Sale; and
(D) 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 Subsidiary.
(ii) Upon the commencement of an Asset Sale Offer, the Issuer shall send, or cause to be sent, by first class mail or electronically, a notice to the Trustee, the Collateral Trustee and to each Holder at its registered addressProceeds Payment Date. The notice shall contain all instructions and materials necessary to enable such Holder Holders to tender Notes Securities pursuant to the Asset Sale Net Proceeds Offer. Any Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Net Proceeds Offer, shall state:
(A1) that the Asset Sale Net Proceeds Offer is being made pursuant to this Section 4.11 and that, to that the extent lawful, all Notes tendered and not withdrawn shall Securities will be accepted for payment on a PRO RATA basis (unless proratedrounded down to the nearest $1,000), if necessary;
(B2) the Asset Sale payment amount, the Asset Sale offered price, Purchase Price and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and not later than 60 days from the date such notice is mailed (the “Asset Sale Net Proceeds Payment Date”);
(C3) that any Notes Security not tendered or accepted for payment shall will continue to accrue interest in accordance with the terms thereofinterest;
(D4) that, unless the Issuer defaults in making such payment, that any Notes Security accepted for payment pursuant to the Asset Sale Net Proceeds Offer shall cease to accrue interest on and after the Asset Sale Net Proceeds Payment Date;
(E5) that Holders each Holder of a Security electing to have any Notes such Security purchased pursuant to any Asset Sale a Net Proceeds Offer shall will be required to surrender the NotesSecurity, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note Security completed, to the Trustee at the address specified in the notice at least three prior to the close of business on the Business Days before Day prior to the Asset Sale Net Proceeds Payment Date;
(F6) that Holders shall will be entitled to withdraw their election if the Trustee receives, not later than three the close of business on the fifth Business Days prior to Day next preceding the Asset Sale Net Proceeds Payment Date, a notice facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note Securities the Holder delivered for purchase and a statement that such Holder is withdrawing its his election to have such Note Securities purchased;
(G) that if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale payment amount, the Trustee shall select the Notes to be purchased in the manner described under Section 16.02(d) of this Indenture; and
(H7) that Holders whose Notes were Securities are purchased only in part shall will be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry).
(iii) If Securities surrendered. The Trustee shall notify 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 Company at the close opening of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant the Net Proceeds Payment Date as to the Asset Sale principal amount of each of the Securities or portions thereof which have been surrendered to the Trustee in connection with the Net Proceeds Offer.
(iv) . On the Asset Sale Net Proceeds Payment Date, the Issuer will, to the extent permitted by law,
Company shall (Ai) accept for payment all Notes issued by it on a PRO RATA basis (if necessary) Securities or portions thereof properly tendered pursuant to the Asset Sale Net Proceeds Offer,
, (Bii) deposit with the Paying Agent money sufficient to pay the purchase price of all Securities or portions thereof so accepted and (iii) deliver or cause to be delivered to the Trustee all Securities so accepted together with an Officers' Certificate stating the Securities or portions thereof accepted for payment by the Company and any other information that the Trustee may reasonably request in order to make the payments required to be made on the Net Proceeds Payment Date. The Paying Agent shall promptly mail to Holders of Securities so accepted, payment in an amount equal to the aggregate Asset Sale payment Purchase Price, and the Trustee shall promptly authenticate and mail to such Holders a new Security equal in respect principal amount to any unpurchased portion of all Notes or portions thereof the Security surrendered. Any Securities not so tendered, and
(C) deliver, or cause to accepted shall be delivered, promptly mailed by the Trustee to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer.
(e) Holder thereof. The Company will comply with publicly announce the requirements results of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to Net Proceeds Offer on or as soon as practicable after the extent those laws and regulations are applicable in connection with each repurchase Net Proceeds Payment Date. For purposes of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 15.02 hereof or this Section 4.11, the Company will comply with Trustee shall act as the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 15.02 hereof or this Section 4.11 by virtue of such compliancePaying Agent.
(f) For the avoidance of doubt, the provisions of this Indenture related to the Issuer’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes.
Appears in 1 contract
Sources: Indenture (Vegeterian Times Inc)
Limitations on Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an any Asset Sale, Sale unless (i) the Company (or the Subsidiary, as the case may be) such Restricted Subsidiary receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date assets included in such Asset Sale (evidenced by the delivery by the Company to the Trustee of the definitive agreement an Officers' Certificate certifying that such Asset Sale complies with respect this clause (i)), (ii) immediately before and immediately giving effect to such Asset Sale) of the assets, property or Capital Stock issued or sold or otherwise disposed of; (ii) no Default or Event of Default shall have occurred and be continuing at the time of the consummation of such Asset Sale or would be caused thereby continuing, and (iii) at least 75% of the consideration received from by the Company or such Asset Sale is, or will be when paid (in the case of milestones, royalties and other deferred payment obligations), Restricted Subsidiary therefor is in the form of cash paid at the closing thereof. The amount (without duplication) of any (x) Indebtedness (other than Subordinated Indebtedness) of the Company or cash equivalents; provided such Restricted Subsidiary that for purposes is expressly assumed by the transferee in such Asset Sale and with respect to which the Company or such Restricted Subsidiary, as the case may be, is unconditionally released by the holder of this clause such Indebtedness, and (iii)y) any Cash Equivalents, or other notes, securities or items of property received from such transferee that are promptly (but in any Designated Non-Cash Consideration received event within 30 days) converted by the Company or such Restricted Subsidiary in respect of such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause cash (iii), not in excess of 25% to the extent of the consideration received from such Asset Sale 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 valuecash actually so received), shall be deemed to be cash for purposes of clause (ii) and, in the case of clause (x) above, shall also be deemed to constitute a repayment of, and a permanent reduction in, the amount of such Indebtedness for purposes of the following paragraph (ivb). If at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then the date of such conversion or disposition shall be deemed to constitute the date of an Asset Sale hereunder and the Net Available Proceeds thereof shall be applied in accordance with this Section 4.16. A transfer of assets by the Company to a Restricted Subsidiary or by a Restricted Subsidiary to the Company or to a Restricted Subsidiary will not be deemed to be an Asset Sale and a transfer of assets that constitutes a Restricted Investment and that is permitted under Section 4.05 will not be deemed to be an Asset Sale.
(b) If the Company or any Restricted Subsidiary engages in an amount equal to 100% Asset Sale, the Company or any Restricted Subsidiary shall, no later than 270 days after such Asset Sale, either (i) apply all or any of the Net Available Cash Proceeds therefrom to repay amounts outstanding under the Credit Agreement or any other Senior Indebtedness; provided, in each case, that the related loan commitment (if any) is thereby permanently reduced by the amount of such Indebtedness so repaid and/or (ii) invest all or any part of the Net Available Proceeds thereof in the purchase of fixed assets
(c) When the aggregate amount of Excess Proceeds equals or exceed $10.0 million (such date, the "ASSET SALE TRIGGER DATE"), the Company will be required to make an offer to purchase, from such Asset Sale is applied to prepayall Holders of the Notes, repay, redeem or repurchase the an aggregate principal amount of Notes as provided under Section 2.13 through open market purchases (equal to the extent amount of such purchases are at or above 100% Excess Proceeds as follows:
(i) The Company will make an offer to purchase (a "NET PROCEEDS OFFER") from all Holders of the principal amount thereof plus the Interest-Make-Whole Payment) or by making an offer (Notes, in accordance with the procedures set forth in this Section 4.11 for an Asset Sale Offer) to all Holders of the Notes to purchase their Notes at 100% of the principal amount thereof plus the Interest-Make-Whole Payment3.08, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes that would otherwise be prepaid; provided that, if the Issuer makes an offer to purchase the Notes pursuant to the foregoing proviso, the Issuer will be deemed to have satisfied its obligations under this clause (iv) and any amounts remaining after such offer to purchase will not be counted in the computation of Net Available Cash; provided further that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause (iv), the Issuer or 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 repurchased.
(b) On the 30th day after an Asset Sale or the receipt of such Net Available Cash, the Issuer will be required to make an offer (“Asset Sale Offer”) to all Holders of the Notes to purchase the maximum principal amount (expressed as a multiple of the $1,000) of Notes that may be purchased out of the Net Available Cash at an amount (the "PAYMENT AMOUNT") of such Excess Proceeds.
(ii) The offer price for the Notes will be payable in cash in an amount equal to 100% of the principal amount of the Notes plus the Interest Make-Whole Paymenttendered pursuant to a Net Proceeds Offer, plus accrued and unpaid interestinterest and Special Interest, if any, to, but not including, to the date of purchasesuch Net Proceeds Offer is consummated (the "OFFERED PRICE"), in accordance with the procedures set forth in this Indenture in minimum denominations of $1,000 and integral multiples of $1,000 in excess thereofIndenture. The Issuer will deliver notice of such Asset Sale Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of the Notes at the address of such Holder appearing in the register or otherwise in accordance with the applicable procedures of the Depositary, describing the transaction or transactions that constitute the Asset Sale and offering to repurchase the Notes for the specified purchase price on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by this Indenture and described in such notice. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Sale by making an Asset Sale Offer with respect to all Net Available Cash prior to the expiration of the relevant 30 days (or such longer period provided above) or with respect to any unapplied Net Available Cash. Notwithstanding the foregoing, in the case of any Asset Sale consisting of the Disposition of Designated U.S. Assets, any related Asset Sale Offer shall be at an offer price in an amount equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest, if any, to, but not including, the date of purchase (without any Interest Make-Whole Payment).
(c) To the extent that the aggregate amount Offered Price of the Notes validly tendered and not validly withdrawn pursuant to an Asset Sale a Net Proceeds Offer is less than the Net Available Cash, the Issuer may use any remaining Net Available Cash for any purpose not prohibited by this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Sale Offer by Holders exceeds the amount of Net Available Cash, the Net Available Cash shall be allocated among the Notes to be purchased on Payment Amount relating thereto (such shortfall constituting a pro rata basis on the basis of the aggregate principal amount of tendered Notes; provided that no Notes will be selected and purchased in an unauthorized denomination. Additionally, the Issuer may, at its option, make an Asset Sale Offer using proceeds from any Asset Sale at any time after the consummation of such Asset Sale. Upon consummation or expiration of any Asset Sale Offer, any remaining Net Available Cash may be used by the Issuer 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 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 Issuer upon converting such portion into Dollars.
(i) For the purposes of Section 4.11(a)(iii"NET PROCEEDS DEFICIENCY"), the following will be deemed to be cash:
(A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Issuer Company may use such Net Proceeds Deficiency, or a Subsidiary (other than Subordinated Indebtedness of the Issuer or a Guarantor) and the release of the Issuer or such Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Sale (portion thereof, for general corporate purposes, subject to the extent the Issuer or such Subsidiary would have had continuing liability for such Indebtedness or other liability);
(B) securities, notes or other obligations received by the Issuer or any Subsidiary of the Issuer from the transferee that are converted by the Issuer or such Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Sale;
(C) Indebtedness or other liabilities of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that the Issuer and each other Subsidiary have no continuing liability for the payment of such Indebtedness or other liabilities limitations in connection with such Asset Sale; and
(D) 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 Subsidiary.
(ii) Upon the commencement of an Asset Sale Offer, the Issuer shall send, or cause to be sent, by first class mail or electronically, a notice to the Trustee, the Collateral Trustee and to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Asset Sale Offer. Any Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(A) that the Asset Sale Offer is being made pursuant to this Section 4.11 and that, to the extent lawful, all Notes tendered and not withdrawn shall be accepted for payment (unless prorated);
(B) the Asset Sale payment amount, the Asset Sale offered price, and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and not later than 60 days from the date such notice is mailed (the “Asset Sale Payment Date”);
(C) that any Notes not tendered or accepted for payment shall continue to accrue interest in accordance with the terms thereof;
(D) that, unless the Issuer defaults in making such payment, any Notes accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on and after the Asset Sale Payment Date;
(E) that Holders electing to have any Notes purchased pursuant to any Asset Sale Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Trustee at the address specified in the notice at least three Business Days before the Asset Sale Payment Date;
(F) that Holders shall be entitled to withdraw their election if the Trustee receives, not later than three Business Days prior to the Asset Sale Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Note purchased;
(G) that if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale payment amount, the Trustee shall select the Notes to be purchased in the manner described under Section 16.02(d) of this Indenture; and
(H) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry)4.05.
(iii) If the Asset Sale aggregate Offered Price of Notes validly tendered and not withdrawn by Holders thereof exceeds the Payment Date is Amount, Notes to be purchased will be selected on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, will be purchased). The Net Proceeds Offer shall remain open for a period of at least 20 Business Days following its commencement (the "NET PROCEEDS OFFER PERIOD"). No later than five Business Days after a record date and on or before the related interest payment datetermination of the Offer Period (the "NET PROCEEDS PURCHASE DATE"), any accrued and unpaid interest shall the Company will purchase the principal amount of Notes required to 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 purchased pursuant to this covenant. Payment for any Notes so purchased will be made in the Asset Sale Offersame manner as interest payments are made.
(iv) On Upon completion of such Net Proceeds Offer in accordance with the Asset Sale Payment Dateforegoing provisions, the Issuer will, amount of Excess Proceeds with respect to the extent permitted by law,
which such Net Proceeds Offer was made shall be deemed to be zero. The Company will not permit any Subsidiary to enter into or suffer to exist any agreement that would place any restriction of any kind (A) accept for payment all Notes issued by it or portions thereof properly tendered other than pursuant to law or regulation) on the ability of the Company to make a Net Proceeds Offer following any Asset Sale Offer,
(B) deposit with the Trustee an amount equal to the aggregate Asset Sale payment in respect of all Notes or portions thereof so tendered, and
(C) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer.
(e) Sale. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 15.02 hereof or this Section 4.11, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 15.02 hereof or this Section 4.11 by virtue of such compliance.
(f) For the avoidance of doubt, the provisions of this Indenture related to the Issuer’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes.thereunder,
Appears in 1 contract
Sources: Indenture (Pool Energy Services Co)