Excess Proceeds Offer. (a) Not later than five (5) days after the date of receipt by the Issuer or any of its Subsidiaries of (i) any Net Cash Proceeds from the issuance of any Indebtedness of the Issuer and its Subsidiaries (other than Permitted Indebtedness) including, without limitation, in any proceeding under Debtor Relief Laws (such Net Cash Proceeds, “Debt Issuance Net Proceeds”), (ii) any Net Cash Proceeds from any Asset Disposition (to the extent the total aggregate amount of such Net Cash Proceeds received by the Issuer and/or its Subsidiaries in the same fiscal year (and not paid to the Holders of the Convertible Notes and/or other Priority Lien Debt to repay Priority Lien Obligations) are in excess of One Hundred Thousand Dollars ($100,000)) (such excess, the “Excess Asset Disposition Net Proceeds”), ; provided that solely with respect to the Divestiture Transaction, the requirement under this Section 6.4(a)(ii) shall not apply to the Company Retained Net Cash Proceeds of such Asset Disposition provided that all Company Retained Net Cash Proceeds are deposited into a Controlled Account within five (5) days after receipt thereof. (iii) any Net Cash Proceeds from any insurance or condemnation awards (once the total aggregate amount of such Net Cash Proceeds received by the Issuer and its Subsidiaries in such fiscal year (and not paid to the Holders of Convertible Notes as a repurchase of the Convertible Notes and/or a repayment of other Priority Lien Debt) exceeds One Hundred Thousand Dollars ($100,000) (and to the extent repurchase is required, the required amount of such repurchase shall only be the net Cash Proceeds in excess of such amount (such excess, the “Excess Condemnation Net Proceeds”), and (ii) if the Issuer notifies the Agent of the Issuer’s or of its Subsidiaries’ intent to reinvest such Net Cash Proceeds on or prior to the fifth (5th) day after such receipt of Net Cash Proceeds then so long as no Default or Event of Default shall have occurred or be continuing at the time of such notice, at the time of reinvestment, or at any time in between, and (y) the proceeds of such insurance and/or condemnation award are held in a Controlled Account, the Issuer shall have the option, directly or through one or more Guarantors or its Subsidiaries, to use such Net Cash Proceeds to reinvest in similar productive assets of the business, in each case, (x) that are used or useful in the business of the Issuer and its Subsidiaries and (y) that comprise Collateral to the extent such property or asset sold or otherwise disposed of was Collateral, within one hundred and eighty (180) days of receipt of such Net Cash Proceeds (or if Issuer or the applicable Subsidiary enters into a binding commitment to reinvest such proceeds not later than the end of such one hundred and eighty (180) day period with the good faith expectation that such proceeds will be applied to satisfy such reinvestment commitment within the next one hundred eighty (180) days, an extension for a period of up to an additional one hundred eighty (180) days from the end of the initial one hundred and eighty (180) day period) (the “Reinvestment Period”) and until the end of the Reinvestment Period, such insurance and/or condemnation awards shall not be considered Excess Condemnation Net Proceeds) or (iv) any cash, Cash Equivalents or other proceeds from any capital contributions to, or issuances or other sales of or transactions with respect to any Equity Interests of the Issuer or any of its Subsidiaries resulting in gross proceeds in excess of Seventy-Five Million Dollars ($75,000,000) in the aggregate in any six (6) month period after (but not including) the Closing DateAugust 13, 2021 (other than Equity Interests issued (A) pursuant to any employee stock or stock option compensation plan, (B) upon the Consummation of the Merger on the Closing Date as a result of the equity contribution occurring in connection therewith, (C) pursuant to the terms of the Convertible Note and the Purchase Agreement in order to purchase, redeem, convert or otherwise exchange the Convertible Notes in accordance with the terms of thereof, in each case the Convertible Notes, those warrants issued pursuant to the Term Loan Credit Agreement and the Purchase Agreement), or (D) for purposes approved in writing by the Agent (such excess, “Excess Equity Issuance Net Proceeds”).
Appears in 1 contract
Samples: Senior Secured Convertible Note Purchase and Guarantee Agreement (Airspan Networks Holdings Inc.)
Excess Proceeds Offer. (a) Not In the event that, pursuant to Section 4.10, the Issuer shall be required to commence an Excess Proceeds Offer, it shall follow the procedures specified below.
(b) The Excess Proceeds Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than five (5) days Business Days after the date termination of receipt by the Offer Period (the “Purchase Date”), the Issuer shall purchase the maximum principal amount of Notes and First Lien Obligations that may be purchased with such Excess Proceeds (which maximum principal amount of Notes and First Lien Obligations shall be the “Offer Amount”) or, if less than the Offer Amount has been tendered, all Notes tendered in response to the Excess Proceeds Offer.
(c) To the extent the Issuer or a Restricted Subsidiary is required under the terms of any First Lien Obligations, the Issuer shall make an offer to the holders of its Subsidiaries ofsuch First Lien Obligations on a pro rata basis with the holders of the Notes, with such proceeds. If the aggregate principal amount of Notes and other First Lien Obligations surrendered by holders thereof exceeds the amount of such Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis by lot, and, in the case of Global Notes, in accordance with the procedures of the Depositary. To the extent that the principal amount of Notes tendered pursuant to an Excess Proceeds Offer is less than the amount of such Excess Proceeds and such other First Lien Obligations, the Issuer may use any remaining Excess Proceeds in any manner not prohibited by this Indenture.
(d) If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a 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 Excess Proceeds Offer.
(e) Upon the commencement of any Excess Proceeds Offer, the Issuer shall send, by first class mail or electronically, a notice to each of the Holders of the Notes, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Excess Proceeds Offer. The notice, which shall govern the terms of the Excess Proceeds Offer, shall state:
(i) any Net Cash that the Excess Proceeds from Offer is being made pursuant to this Section 3.10 and the issuance length of any Indebtedness of time the Issuer and its Subsidiaries (other than Permitted Indebtedness) including, without limitation, in any proceeding under Debtor Relief Laws (such Net Cash Proceeds, “Debt Issuance Net Proceeds”),Excess Proceeds Offer shall remain open;
(ii) any Net Cash Proceeds from any Asset Disposition (to the extent the total aggregate amount of such Net Cash Proceeds received by the Issuer and/or its Subsidiaries in the same fiscal year (and not paid to the Holders of the Convertible Notes and/or other Priority Lien Debt to repay Priority Lien Obligations) are in excess of One Hundred Thousand Dollars ($100,000)) (such excessOffer Amount, the “Excess Asset Disposition Net Proceeds”), ; provided that solely with respect to purchase price and the Divestiture Transaction, the requirement under this Section 6.4(a)(ii) shall not apply to the Company Retained Net Cash Proceeds of such Asset Disposition provided that all Company Retained Net Cash Proceeds are deposited into a Controlled Account within five (5) days after receipt thereof.Purchase Date;
(iii) that any Net Cash Note not tendered or accepted for payment shall continue to accrue interest;
(iv) that, unless the Issuer defaults in making such payment, any Note accepted for payment pursuant to the Excess Proceeds from Offer shall cease to accrue interest after the Purchase Date;
(v) that Holders electing to have a Note purchased pursuant to any insurance or condemnation awards (once Excess Proceeds Offer shall be required to surrender the total aggregate amount Note, with the form entitled “Option of such Net Cash Proceeds received Holder to Elect Purchase” on the reverse of the Note completed, to the Issuer, a Depositary, if appointed by the Issuer and its Subsidiaries Issuer, or a Paying Agent at the address specified in such fiscal year the notice at least three Business Days before the Purchase Date;
(and not paid vi) that Holders shall be entitled to the Holders of Convertible Notes as a repurchase of the Convertible Notes and/or a repayment of other Priority Lien Debt) exceeds One Hundred Thousand Dollars ($100,000) (and to the extent repurchase is required, the required amount of such repurchase shall only be the net Cash Proceeds in excess of such amount (such excess, the “Excess Condemnation Net Proceeds”), and (ii) withdraw their election if the Issuer notifies Issuer, Depositary or Paying Agent, as the Agent of the Issuer’s or of its Subsidiaries’ intent to reinvest such Net Cash Proceeds on or prior to the fifth (5th) day after such receipt of Net Cash Proceeds then so long as no Default or Event of Default shall have occurred or be continuing at the time of such noticecase may be, at the time of reinvestmentreceives, or at any time in between, and (y) the proceeds of such insurance and/or condemnation award are held in a Controlled Account, the Issuer shall have the option, directly or through one or more Guarantors or its Subsidiaries, to use such Net Cash Proceeds to reinvest in similar productive assets of the business, in each case, (x) that are used or useful in the business of the Issuer and its Subsidiaries and (y) that comprise Collateral to the extent such property or asset sold or otherwise disposed of was Collateral, within one hundred and eighty (180) days of receipt of such Net Cash Proceeds (or if Issuer or the applicable Subsidiary enters into a binding commitment to reinvest such proceeds not later than the end expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such one hundred Xxxxxx is unconditionally withdrawing his election to have the Note purchased; and
(vii) that, if the aggregate principal amount of Notes surrendered by Holders and eighty (180) day period other First Lien Obligations tendered by the holders thereof exceeds the Offer Amount, the Trustee shall select the Notes to be purchased on a pro rata basis, by lot, and, in the case of Global Notes, in accordance with the good faith expectation that such proceeds will be applied to satisfy such reinvestment commitment within the next one hundred eighty (180) days, an extension for a period of up to an additional one hundred eighty (180) days from the end procedures of the initial one hundred and eighty Depositary (180) day period) (with such adjustments as may be deemed appropriate by the “Reinvestment Period”) and until the end Issuer so that only Notes in minimum denominations of the Reinvestment Period$2,000, such insurance and/or condemnation awards or integral multiples of $1,000 in excess thereof, shall not be considered Excess Condemnation Net Proceeds) orpurchased).
(ivf) any cashOn or before the Purchase Date, Cash Equivalents or other proceeds from any capital contributions to, or issuances or other sales of or transactions with respect to any Equity Interests of the Issuer shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or any of its Subsidiaries resulting in gross proceeds in excess of Seventy-Five Million Dollars ($75,000,000) in the aggregate in any six (6) month period after (but not including) the Closing DateAugust 13, 2021 (other than Equity Interests issued (A) pursuant to any employee stock or stock option compensation plan, (B) upon the Consummation of the Merger on the Closing Date as a result of the equity contribution occurring in connection therewith, (C) portions thereof tendered pursuant to the terms of Excess Proceeds Offer, or if less than the Convertible Note Offer Amount has been tendered, all Notes or portion thereof tendered, and deliver to the Purchase Agreement in order to purchase, redeem, convert Trustee an Officers’ Certificate stating that such Notes or otherwise exchange portions thereof were accepted for payment by the Convertible Notes Issuer in accordance with the terms of this Section 3.10. The Issuer, Depositary or Paying Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Note tendered by such Holder and accepted by the Issuer for purchase, and the Issuer shall promptly issue a new Note, and the Trustee shall authenticate and mail or deliver such new Note, to such Holder equal in principal amount to any unpurchased portion of the Note surrendered. In addition, the Issuer shall take any and all other actions required by the agreements governing any other First Lien Obligations. Any Note not so accepted shall be promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer shall publicly announce the results of the Excess Proceeds Offer on the Purchase Date.
(g) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act (or any successor rules) and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes pursuant to an Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer’s compliance with such laws and regulations shall not in each case the Convertible Notesand of itself be deemed to have caused a breach of its obligations under this Indenture.
(h) Other than as specifically provided in this Section 3.10 or Section 4.10, those warrants issued any purchase pursuant to this Section 3.10 shall be made pursuant to the Term Loan Credit Agreement provisions of Sections 3.02 and the Purchase Agreement), or (D) for purposes approved in writing by the Agent (such excess, “Excess Equity Issuance Net Proceeds”)3.05 hereof.
Appears in 1 contract
Samples: Indenture (Akumin Inc.)
Excess Proceeds Offer. (a) Not In the event that, pursuant to Section 4.10, the Issuer shall be required to commence an Excess Proceeds Offer, it shall follow the procedures specified below.
(b) The Excess Proceeds Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than five (5) days Business Days after the date termination of receipt by the Offer Period (the “Purchase Date”), the Issuer shall purchase the maximum principal amount of Notes and First Lien Obligations that may be purchased with such Excess Proceeds (which maximum principal amount of Notes and First Lien Obligations shall be the “Offer Amount”) or, if less than the Offer Amount has been tendered, all Notes tendered in response to the Excess Proceeds Offer.
(c) To the extent the Issuer or any of its Subsidiaries of
(i) any Net Cash Proceeds from a Restricted Subsidiary is required under the issuance terms of any Indebtedness First Lien Obligations, the Issuer shall make an offer to the holders of such First Lien Obligations on a pro rata basis with the holders of the Issuer Notes, with such proceeds. If the aggregate principal amount of Notes and its Subsidiaries (other than Permitted Indebtedness) including, without limitation, in any proceeding under Debtor Relief Laws (such Net Cash Proceeds, “Debt Issuance Net Proceeds”),
(ii) any Net Cash Proceeds from any Asset Disposition (to First Lien Obligations surrendered by holders thereof exceeds the extent the total aggregate amount of such Net Cash Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis by lot, and, in the case of Global Notes, in accordance with the procedures of the Depositary. To the extent that the principal amount of Notes tendered pursuant to an Excess Proceeds received by Offer is less than the amount of such Excess Proceeds and such other First Lien Obligations, the Issuer and/or its Subsidiaries may use any remaining Excess Proceeds in any manner not prohibited by this Indenture.
(d) If the same fiscal year (Purchase Date is on or after an interest record date and not 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 Excess Proceeds Offer.
(e) Upon the commencement of any Excess Proceeds Offer, the Issuer shall send, by first class mail or electronically, a notice to each of the Holders of the Convertible Notes and/or other Priority Lien Debt to repay Priority Lien Obligations) are in excess of One Hundred Thousand Dollars ($100,000)) (such excessNotes, the “Excess Asset Disposition Net Proceeds”), ; provided that solely with respect a copy to the Divestiture Transaction, the requirement under this Section 6.4(a)(ii) Trustee. The notice shall not apply contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Company Retained Net Cash Excess Proceeds of such Asset Disposition provided that all Company Retained Net Cash Proceeds are deposited into a Controlled Account within five (5) days after receipt thereof.
(iii) any Net Cash Proceeds from any insurance or condemnation awards (once the total aggregate amount of such Net Cash Proceeds received by the Issuer and its Subsidiaries in such fiscal year (and not paid to the Holders of Convertible Notes as a repurchase of the Convertible Notes and/or a repayment of other Priority Lien Debt) exceeds One Hundred Thousand Dollars ($100,000) (and to the extent repurchase is required, the required amount of such repurchase shall only be the net Cash Proceeds in excess of such amount (such excess, the “Excess Condemnation Net Proceeds”), and (ii) if the Issuer notifies the Agent of the Issuer’s or of its Subsidiaries’ intent to reinvest such Net Cash Proceeds on or prior to the fifth (5th) day after such receipt of Net Cash Proceeds then so long as no Default or Event of Default shall have occurred or be continuing at the time of such Offer. The notice, at the time of reinvestment, or at any time in between, and (y) the proceeds of such insurance and/or condemnation award are held in a Controlled Account, the Issuer which shall have the option, directly or through one or more Guarantors or its Subsidiaries, to use such Net Cash Proceeds to reinvest in similar productive assets of the business, in each case, (x) that are used or useful in the business of the Issuer and its Subsidiaries and (y) that comprise Collateral to the extent such property or asset sold or otherwise disposed of was Collateral, within one hundred and eighty (180) days of receipt of such Net Cash Proceeds (or if Issuer or the applicable Subsidiary enters into a binding commitment to reinvest such proceeds not later than the end of such one hundred and eighty (180) day period with the good faith expectation that such proceeds will be applied to satisfy such reinvestment commitment within the next one hundred eighty (180) days, an extension for a period of up to an additional one hundred eighty (180) days from the end of the initial one hundred and eighty (180) day period) (the “Reinvestment Period”) and until the end of the Reinvestment Period, such insurance and/or condemnation awards shall not be considered Excess Condemnation Net Proceeds) or
(iv) any cash, Cash Equivalents or other proceeds from any capital contributions to, or issuances or other sales of or transactions with respect to any Equity Interests of the Issuer or any of its Subsidiaries resulting in gross proceeds in excess of Seventy-Five Million Dollars ($75,000,000) in the aggregate in any six (6) month period after (but not including) the Closing DateAugust 13, 2021 (other than Equity Interests issued (A) pursuant to any employee stock or stock option compensation plan, (B) upon the Consummation of the Merger on the Closing Date as a result of the equity contribution occurring in connection therewith, (C) pursuant to govern the terms of the Convertible Note and the Purchase Agreement in order to purchaseExcess Proceeds Offer, redeem, convert or otherwise exchange the Convertible Notes in accordance with the terms of thereof, in each case the Convertible Notes, those warrants issued pursuant to the Term Loan Credit Agreement and the Purchase Agreement), or (D) for purposes approved in writing by the Agent (such excess, “Excess Equity Issuance Net Proceeds”).shall state:
Appears in 1 contract
Excess Proceeds Offer. (ai) Not later than five (5) days day after the date of receipt by the Issuer by:
(A) any Note Party or any of its Subsidiaries of
(i) of any Net Cash Asset Sale Proceeds from the issuance of any Indebtedness of the Issuer and its Subsidiaries (other than Permitted Indebtedness) including, without limitation, in any proceeding under Debtor Relief Laws (such Net Cash Proceeds, “Debt Issuance Net Proceeds”),
(ii) any Net Cash Proceeds from any Asset Disposition (to the extent the total aggregate amount of such Net Cash Proceeds received by the Issuer and/or its Subsidiaries in the same fiscal year (and not paid to the Holders of the Convertible Notes and/or other Priority Lien Debt to repay Priority Lien Obligations) are in excess of One Hundred Thousand Dollars ($100,000)) in the aggregate since the Closing Date (such excess, the “Excess Net Asset Disposition Net Sale Proceeds”), ; provided that solely with respect to the Divestiture Transaction, the requirement under this Section 6.4(a)(ii) shall not apply to the Company Retained Net Cash Proceeds of such Asset Disposition provided that all Company Retained Net Cash Proceeds are deposited into a Controlled Account within five (5) days after receipt thereof.;
(iiiB) any Note Party or any of its Subsidiaries, or Administrative Agent as loss payee, of any Net Cash Insurance/Condemnation Proceeds from any insurance or condemnation awards (once the total aggregate amount in excess of such Net Cash Proceeds received by the Issuer and its Subsidiaries in such fiscal year (and not paid to the Holders of Convertible Notes as a repurchase of the Convertible Notes and/or a repayment of other Priority Lien Debt) exceeds One Hundred Thousand Dollars ($100,000) (and to in the extent repurchase is required, aggregate since the required amount of such repurchase shall only be the net Cash Proceeds in excess of such amount Closing Date (such excess, the “Excess Net Insurance/Condemnation Net Proceeds”), and (ii) if the Issuer notifies the Agent of the Issuer’s or of its Subsidiaries’ intent to reinvest such Net Cash Proceeds on or prior to the fifth (5th) day after such receipt of Net Cash Proceeds then so long as no Default or Event of Default shall have occurred or be continuing at the time of such notice, at the time of reinvestment, or at any time in between, and (y) the proceeds of such insurance and/or condemnation award are held in a Controlled Account, the Issuer shall have the option, directly or through one or more Guarantors or its Subsidiaries, to use such Net Cash Proceeds to reinvest in similar productive assets of the business, in each case, (x) that are used or useful in the business of the Issuer and its Subsidiaries and (y) that comprise Collateral to the extent such property or asset sold or otherwise disposed of was Collateral, within one hundred and eighty (180) days of receipt of such Net Cash Proceeds (or if Issuer or the applicable Subsidiary enters into a binding commitment to reinvest such proceeds not later than the end of such one hundred and eighty (180) day period with the good faith expectation that such proceeds will be applied to satisfy such reinvestment commitment within the next one hundred eighty (180) days, an extension for a period of up to an additional one hundred eighty (180) days from the end of the initial one hundred and eighty (180) day period) (the “Reinvestment Period”) and until the end of the Reinvestment Period, such insurance and/or condemnation awards shall not be considered Excess Condemnation Net Proceeds) or;
(ivC) any receipt by Topco of any cash, Cash Equivalents or other proceeds from any capital contributions to, or issuances or other sales of or transactions with respect to any Equity Interests (provided; however that prior to the consummation of the Issuer De-SPAC Transactions, a prepayment shall only be required only once the proceeds from such transactions (individually or in the aggregate) exceed $25,000,000 and in no case shall the Note Parties be required to make a prepayment with the proceeds of the De-SPAC Transactions) (the provisions of this clause (C) shall not be deemed to be implied consent to any such issuance, incurrence or sale otherwise prohibited by the terms and conditions of this Agreement) (“Issuance Proceeds”);
(D) any Note Party or any of its Subsidiaries resulting in gross proceeds or any of its Subsidiaries of any Net Indebtedness Incurrence Proceeds since the Closing Date (such excess, “Excess Net Indebtedness Incurrence Proceeds”);
(E) any Note Party or any of its Subsidiaries of any tax refunds in excess of Seventy-Five Million One Hundred Thousand Dollars ($75,000,000100,000) in the aggregate in any six (6) month period after (but not including) the Closing DateAugust 13, 2021 (other than Equity Interests issued (A) pursuant to any employee stock or stock option compensation plan, (B) upon the Consummation of the Merger on the Closing Date as a result of the equity contribution occurring in connection therewith, (C) pursuant to the terms of the Convertible Note and the Purchase Agreement in order to purchase, redeem, convert or otherwise exchange the Convertible Notes in accordance with the terms of thereof, in each case the Convertible Notes, those warrants issued pursuant to the Term Loan Credit Agreement and the Purchase Agreement), or (D) for purposes approved in writing by the Agent Fiscal Year (such excess, “Excess Equity Issuance Net Tax Refund Proceeds”).;
(F) on each ATM Payment Date, any Note Party or any of its Subsidiaries of any Net ATM Proceeds, if any (each such payment, an “ATM Payment”), received in cash by the Issuer from the issuance of ATM Shares, if any are issued, during the ATM Issuance Period;
Appears in 1 contract
Samples: Senior Secured Note Purchase Agreement (Vahanna Tech Edge Acquisition I Corp.)
Excess Proceeds Offer. (a) Not In the event that, pursuant to Section 4.10, the Issuer shall be required to commence an Excess Proceeds Offer, it shall follow the procedures specified below.
(b) The Excess Proceeds Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than five (5) days Business Days after the date termination of receipt by the Offer Period (the “Purchase Date”), the Issuer shall purchase the maximum principal amount of Notes and First Lien Obligations that may be purchased with such Excess Proceeds (which maximum principal amount of Notes and First Lien Obligations shall be the “Offer Amount”) or, if less than the Offer Amount has been tendered, all Notes tendered in response to the Excess Proceeds Offer.
(c) To the extent the Issuer or a Restricted Subsidiary is required under the terms of any First Lien Obligations, the Issuer shall make an offer to the holders of its Subsidiaries ofsuch First Lien Obligations on a pro rata basis with the holders of the Notes, with such proceeds. If the aggregate principal amount of Notes and other First Lien Obligations surrendered by holders thereof exceeds the amount of such Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis by lot, and, in the case of Global Notes, in accordance with the procedures of the Depositary. To the extent that the principal amount of Notes tendered pursuant to an Excess Proceeds Offer is less than the amount of such Excess Proceeds and such other First Lien Obligations, the Issuer may use any remaining Excess Proceeds in any manner not prohibited by this Indenture.
(d) If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a 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 Excess Proceeds Offer.
(e) Upon the commencement of any Excess Proceeds Offer, the Issuer shall send, by first class mail or electronically, a notice to each of the Holders of the Notes, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Excess Proceeds Offer. The notice, which shall govern the terms of the Excess Proceeds Offer, shall state:
(i) any Net Cash that the Excess Proceeds from Offer is being made pursuant to this Section 3.08 and the issuance length of any Indebtedness of time the Issuer and its Subsidiaries (other than Permitted Indebtedness) including, without limitation, in any proceeding under Debtor Relief Laws (such Net Cash Proceeds, “Debt Issuance Net Proceeds”),Excess Proceeds Offer shall remain open;
(ii) any Net Cash Proceeds from any Asset Disposition (to the extent the total aggregate amount of such Net Cash Proceeds received by the Issuer and/or its Subsidiaries in the same fiscal year (and not paid to the Holders of the Convertible Notes and/or other Priority Lien Debt to repay Priority Lien Obligations) are in excess of One Hundred Thousand Dollars ($100,000)) (such excessOffer Amount, the “Excess Asset Disposition Net Proceeds”), ; provided that solely with respect to purchase price and the Divestiture Transaction, the requirement under this Section 6.4(a)(ii) shall not apply to the Company Retained Net Cash Proceeds of such Asset Disposition provided that all Company Retained Net Cash Proceeds are deposited into a Controlled Account within five (5) days after receipt thereof.Purchase Date;
(iii) that any Net Cash Note not tendered or accepted for payment shall continue to accrue interest;
(iv) that, unless the Issuer defaults in making such payment, any Note accepted for payment pursuant to the Excess Proceeds from Offer shall cease to accrue interest after the Purchase Date;
(v) that Holders electing to have a Note purchased pursuant to any insurance or condemnation awards (once Excess Proceeds Offer shall be required to surrender the total aggregate amount Note, with the form entitled “Option of such Net Cash Proceeds received Holder to Elect Purchase” on the reverse of the Note completed, to the Issuer, a Depositary, if appointed by the Issuer and its Subsidiaries Issuer, or a Paying Agent at the address specified in such fiscal year the notice at least three Business Days before the Purchase Date;
(and not paid vi) that Holders shall be entitled to the Holders of Convertible Notes as a repurchase of the Convertible Notes and/or a repayment of other Priority Lien Debt) exceeds One Hundred Thousand Dollars ($100,000) (and to the extent repurchase is required, the required amount of such repurchase shall only be the net Cash Proceeds in excess of such amount (such excess, the “Excess Condemnation Net Proceeds”), and (ii) withdraw their election if the Issuer notifies Issuer, Depositary or Paying Agent, as the Agent of the Issuer’s or of its Subsidiaries’ intent to reinvest such Net Cash Proceeds on or prior to the fifth (5th) day after such receipt of Net Cash Proceeds then so long as no Default or Event of Default shall have occurred or be continuing at the time of such noticecase may be, at the time of reinvestmentreceives, or at any time in between, and (y) the proceeds of such insurance and/or condemnation award are held in a Controlled Account, the Issuer shall have the option, directly or through one or more Guarantors or its Subsidiaries, to use such Net Cash Proceeds to reinvest in similar productive assets of the business, in each case, (x) that are used or useful in the business of the Issuer and its Subsidiaries and (y) that comprise Collateral to the extent such property or asset sold or otherwise disposed of was Collateral, within one hundred and eighty (180) days of receipt of such Net Cash Proceeds (or if Issuer or the applicable Subsidiary enters into a binding commitment to reinvest such proceeds not later than the end expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such one hundred Xxxxxx is unconditionally withdrawing his election to have the Note purchased; and
(vii) that, if the aggregate principal amount of Notes surrendered by Holders and eighty (180) day period other First Lien Obligations tendered by the holders thereof exceeds the Offer Amount, the Trustee shall select the Notes to be purchased on a pro rata basis, by lot, and, in the case of Global Notes, in accordance with the good faith expectation that such proceeds will be applied to satisfy such reinvestment commitment within the next one hundred eighty (180) days, an extension for a period of up to an additional one hundred eighty (180) days from the end procedures of the initial one hundred and eighty Depositary (180) day period) (with such adjustments as may be deemed appropriate by the “Reinvestment Period”) and until the end Issuer so that only Notes in minimum denominations of the Reinvestment Period$2,000, such insurance and/or condemnation awards or integral multiples of $1,000 in excess thereof, shall not be considered Excess Condemnation Net Proceeds) orpurchased).
(ivf) any cashOn or before the Purchase Date, Cash Equivalents or other proceeds from any capital contributions to, or issuances or other sales of or transactions with respect to any Equity Interests of the Issuer shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or any of its Subsidiaries resulting in gross proceeds in excess of Seventy-Five Million Dollars ($75,000,000) in the aggregate in any six (6) month period after (but not including) the Closing DateAugust 13, 2021 (other than Equity Interests issued (A) pursuant to any employee stock or stock option compensation plan, (B) upon the Consummation of the Merger on the Closing Date as a result of the equity contribution occurring in connection therewith, (C) portions thereof tendered pursuant to the terms of Excess Proceeds Offer, or if less than the Convertible Note Offer Amount has been tendered, all Notes or portion thereof tendered, and deliver to the Purchase Agreement in order to purchase, redeem, convert Trustee an Officers’ Certificate stating that such Notes or otherwise exchange portions thereof were accepted for payment by the Convertible Notes Issuer in accordance with the terms of thereof, in each case the Convertible Notes, those warrants issued pursuant to the Term Loan Credit Agreement and the Purchase Agreement), or (D) for purposes approved in writing by the Agent (such excess, “Excess Equity Issuance Net Proceeds”)this Section 3.
Appears in 1 contract
Excess Proceeds Offer. Within two (a2) Not later than five (5) days after Business Days following each date on which the date of receipt Company’s obligation to make an Excess Proceeds Offer is triggered, the Company shall send, by the Issuer or any of its Subsidiaries ofovernight courier, a notice to each Noteholder stating:
(i) any Net Cash that the Excess Proceeds from the issuance of any Indebtedness of the Issuer and its Subsidiaries (other than Permitted Indebtedness) includingOffer is being made pursuant to this Section 6.16 or 7.06, without limitation, in any proceeding under Debtor Relief Laws (such Net Cash Proceeds, “Debt Issuance Net Proceeds”),as applicable;
(ii) any Net Cash Proceeds from any Asset Disposition (to that the extent Company shall purchase the total aggregate principal amount of such Net Cash Proceeds received by Notes required to be purchased pursuant to this Section 6.16 or Section 7.06, as applicable (the Issuer and/or its Subsidiaries in “Offer Amount”), the same fiscal year (purchase price per Note and not paid to the Holders purchase date, which shall be at least 5 but no more than 10 Business Days from the date on which the Company mails notice of the Convertible Notes and/or other Priority Lien Debt to repay Priority Lien Obligations) are in excess of One Hundred Thousand Dollars Excess Proceeds Offer ($100,000)) (such excess, the “Excess Asset Disposition Net ProceedsProceeds Offer Payment Date”), ; provided that solely with respect to the Divestiture Transaction, the requirement under this Section 6.4(a)(ii) shall not apply to the Company Retained Net Cash Proceeds of such Asset Disposition provided that all Company Retained Net Cash Proceeds are deposited into a Controlled Account within five (5) days after receipt thereof.;
(iii) that any Net Cash Proceeds from any insurance or condemnation awards (once the total aggregate amount of such Net Cash Proceeds received by the Issuer and its Subsidiaries in such fiscal year (and Notes not paid tendered will continue to the Holders of Convertible Notes as a repurchase of the Convertible Notes and/or a repayment of other Priority Lien Debt) exceeds One Hundred Thousand Dollars ($100,000) (and to the extent repurchase is required, the required amount of such repurchase shall only be the net Cash Proceeds in excess of such amount (such excess, the “Excess Condemnation Net Proceeds”), and (ii) if the Issuer notifies the Agent of the Issuer’s or of its Subsidiaries’ intent to reinvest such Net Cash Proceeds on or prior to the fifth (5th) day after such receipt of Net Cash Proceeds then so long as no Default or Event of Default shall have occurred or be continuing at the time of such notice, at the time of reinvestment, or at any time in between, and (y) the proceeds of such insurance and/or condemnation award are held in a Controlled Account, the Issuer shall have the option, directly or through one or more Guarantors or its Subsidiaries, to use such Net Cash Proceeds to reinvest in similar productive assets of the business, in each case, (x) that are used or useful in the business of the Issuer and its Subsidiaries and (y) that comprise Collateral to the extent such property or asset sold or otherwise disposed of was Collateral, within one hundred and eighty (180) days of receipt of such Net Cash Proceeds (or if Issuer or the applicable Subsidiary enters into a binding commitment to reinvest such proceeds not later than the end of such one hundred and eighty (180) day period with the good faith expectation that such proceeds will be applied to satisfy such reinvestment commitment within the next one hundred eighty (180) days, an extension for a period of up to an additional one hundred eighty (180) days from the end of the initial one hundred and eighty (180) day period) (the “Reinvestment Period”) and until the end of the Reinvestment Period, such insurance and/or condemnation awards shall not be considered Excess Condemnation Net Proceeds) oraccrue interest;
(iv) any cashthat, Cash Equivalents or other proceeds from any capital contributions to, or issuances or other sales of or transactions with respect to any Equity Interests unless the Company defaults in payment of the Issuer or any of its Subsidiaries resulting in gross proceeds in excess of Seventy-Five Million Dollars ($75,000,000) in the aggregate in any six (6) month period after (but not including) the Closing DateAugust 13, 2021 (other than Equity Interests issued (A) pursuant to any employee stock or stock option compensation plan, (B) upon the Consummation of the Merger Offer Amount on the Closing Date as a result of the equity contribution occurring in connection therewithExcess Proceeds Offer Payment Date, (C) all Notes accepted for payment pursuant to the terms Excess Proceeds Offer shall cease to accrue interest after the Excess Proceeds Offer Payment Date;
(v) that Noteholders electing to have any Notes purchased pursuant to an Excess Proceeds Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Convertible Note and Notes completed, to the Purchase Agreement Company or its designated agent for such purpose at the address specified in order the notice prior to 5:00 p.m. Eastern Time on the Business Day preceding the Excess Proceeds Offer Payment Date;
(vi) that Noteholders will be entitled to withdraw their election if the Company or its designated agent for such purpose receives, not later than 9:00 a.m. Eastern Time on the Excess Proceeds Offer Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Noteholder, the principal amount of Notes delivered for purchase, redeemand a statement that such Noteholder is withdrawing his election to have the Notes purchased;
(vii) that, convert or otherwise exchange if the Convertible aggregate principal amount of Notes surrendered by Noteholders exceeds the Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis; and
(viii) that Noteholders whose Notes are being purchased only in accordance with the terms of thereof, part will be issued new Notes equal in each case the Convertible Notes, those warrants issued pursuant principal amount to the Term Loan Credit Agreement and unpurchased portion of the Purchase Agreement), or (D) for purposes approved in writing by the Agent (such excess, “Excess Equity Issuance Net Proceeds”)Notes surrendered.
Appears in 1 contract
Samples: Purchase Agreement (Digital Domain)
Excess Proceeds Offer. (a) Not later than five (5) days after the date of receipt by the Issuer or any of its Subsidiaries of
(i) any Net Cash Proceeds from the issuance of any Indebtedness of the Issuer and its Subsidiaries (other than Permitted Indebtedness) including, without limitation, in any proceeding under Debtor Relief Laws (such Net Cash Proceeds, “Debt Issuance Net Proceeds”),
(ii) any Net Cash Proceeds from any Asset Disposition (to the extent the total aggregate amount of such Net Cash Proceeds received by the Issuer and/or its Subsidiaries in the same fiscal year (and not paid to the Holders of the Convertible Notes and/or other Priority Lien Debt to repay Priority Lien Obligations) are in excess of One Hundred Thousand Dollars ($100,000)) (such excess, the “Excess Asset Disposition Net Proceeds”), ; provided that solely with respect to the Divestiture Transaction, the requirement under this Section 6.4(a)(ii) shall not apply to the Company Retained Net Cash Proceeds of such Asset Disposition provided that all Company Retained Net Cash Proceeds are deposited into a Controlled Account within five (5) days after receipt thereof.,
(iii) any Net Cash Proceeds from any insurance or condemnation awards (once the total aggregate amount of such Net Cash Proceeds received by the Issuer and its Subsidiaries in such fiscal year (and not paid to the Holders of Convertible Notes as a repurchase of the Convertible Notes and/or a repayment of other Priority Lien Debt) exceeds One Hundred Thousand Dollars ($100,000) (and to the extent repurchase is required, the required amount of such repurchase shall only be the net Cash Proceeds in excess of such amount (such excess, the “Excess Condemnation Net Proceeds”), and (ii) if the Issuer notifies the Agent of the Issuer’s or of its Subsidiaries’ intent to reinvest such Net Cash Proceeds on or prior to the fifth (5th) day after such receipt of Net Cash Proceeds then so long as no Default or Event of Default shall have occurred or be continuing at the time of such notice, at the time of reinvestment, or at any time in between, and (y) the proceeds of such insurance and/or condemnation award are held in a Controlled Account, the Issuer shall have the option, directly or through one or more Guarantors or its Subsidiaries, to use such Net Cash Proceeds to reinvest in similar productive assets of the business, in each case, (x) that are used or useful in the business of the Issuer and its Subsidiaries and (y) that comprise Collateral to the extent such property or asset sold or otherwise disposed of was Collateral, within one hundred and eighty (180) days of receipt of such Net Cash Proceeds (or if Issuer or the applicable Subsidiary enters into a binding commitment to reinvest such proceeds not later than the end of such one hundred and eighty (180) day period with the good faith expectation that such proceeds will be applied to satisfy such reinvestment commitment within the next one hundred eighty (180) days, an extension for a period of up to an additional one hundred eighty (180) days from the end of the initial one hundred and eighty (180) day period) (the “Reinvestment Period”) and until the end of the Reinvestment Period, such insurance and/or condemnation awards shall not be considered Excess Condemnation Net Proceeds) or
(iv) any cash, Cash Equivalents or other proceeds from any capital contributions to, or issuances or other sales of or transactions with respect to any Equity Interests of the Issuer or any of its Subsidiaries resulting in gross proceeds in excess of Seventy-Five Million Dollars ($75,000,000) in the aggregate in any six (6) month period after (but not including) the Closing DateAugust 13, 2021 Date (other than Equity Interests issued (A) pursuant to any employee stock or stock option compensation plan, (B) upon the Consummation of the Merger on the Closing Date as a result of the equity contribution occurring in connection therewith, (C) pursuant to the terms of the Convertible Note and the Purchase Agreement in order to purchase, redeem, convert or otherwise exchange the Convertible Notes in accordance with the terms of thereof, in each case the Convertible Notes, those warrants issued pursuant to the Term Loan Credit Agreement and the Purchase Agreement), or (D) for purposes approved in writing by the Agent (such excess, “Excess Equity Issuance Net Proceeds”). (each of the events set forth in the foregoing clauses (i), (ii), (iii) and (iv), a “Mandatory Prepayment Event”), the Issuer will be obligated to make an offer in the form attached hereto as Exhibit D (such offer, a “Mandatory Prepayment Offer”) to the Holders of the Convertible Notes to purchase Convertible Notes (or a portion thereof) in an amount equal to 100% of the aggregate Convertible Notes Allocable Share of all such Excess Proceeds, plus accrued and unpaid interest on the aggregate principal amount of Convertible Notes to be prepaid to, but excluding, the date of purchase plus the applicable Make-Whole Amount (unless such Excess Proceeds derive from Excess Condemnation Net Proceeds, in which case the applicable Make-Whole Amount shall not be included) (the “Mandatory Prepayment Offer Payment Amount”). If the Mandatory Prepayment Offer is for less than all of the outstanding Convertible Notes and Convertible Notes in an aggregate principal amount in excess of the purchase amount are tendered and not withdrawn pursuant to the Mandatory Prepayment Offer, the Issuer will purchase Convertible Notes having an aggregate principal amount equal to the purchase amount on a pro rata basis, with adjustments so that only Convertible Notes in multiples of $1,000 principal amount (and in a minimum principal amount of $1,000) will be purchased. Any portion of such Excess Proceeds remaining after consummation of the Mandatory Prepayment Offer may be used for any purpose not otherwise prohibited by the Note Documents.
(b) Within the timeframe noted in (a) above, the Issuer shall send a written offer to each Holder by first class mail or such other notice method provided for in the Purchase Agreement, which shall govern the terms of the Mandatory Prepayment Offer, with a copy of such offer to the Collateral Agent. The offer shall state:
(1) that a Mandatory Prepayment Offer is being made as provided for herein, and that, although Holders are not required to tender their Convertible Notes, all Convertible Notes (or a portion thereof) that are validly tendered shall be accepted for payment, subject to pro rata reduction as set forth in Sections 6.4(a) and (e);
(2) the principal amount of Convertible Notes subject to the Mandatory Prepayment Offer, the Mandatory Prepayment Offer Amount and the nature and amount of the Excess Proceeds and the expiration date of the Mandatory Prepayment Offer (the “Mandatory Prepayment Offer Expiration Date”), which will be no earlier than thirty (30) days and no later than sixty (60) days after the date such written notice to the Holders and the Collateral Agent is sent and a settlement date for purchase (the “Mandatory Prepayment Date”) not more than five (5) Business Days after the Mandatory Prepayment Offer Expiration Date;
(3) that any Convertible Note (or portion thereof) accepted for payment pursuant to the Mandatory Prepayment Offer (and duly paid for on the Mandatory Prepayment Date) shall cease to accrue interest after the Mandatory Prepayment Date;
(4) that any Convertible Notes (or portions thereof) not validly tendered shall continue to accrue interest;
(5) that any Holder electing to have a Convertible Note (or portion thereof) purchased pursuant to a Mandatory Prepayment Offer shall be required to notify the Issuer of its election before the close of business on the Mandatory Prepayment Offer Expiration Date;
(6) that Holders shall be entitled to withdraw their election if the Issuer receives, not later than the close of business on the Mandatory Prepayment Offer Expiration Date, an electronic transmission or letter setting forth the name of the Holder, the principal amount of the Convertible Note (or portion thereof) the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Convertible Note purchased; and
(7) the instructions and any other information necessary to enable Holders to tender their Convertible Notes (or portions thereof) and have such Convertible Notes (or portions thereof) purchased pursuant to the Mandatory Prepayment Offer.
Appears in 1 contract
Samples: Senior Secured Convertible Note Purchase and Guarantee Agreement (Airspan Networks Holdings Inc.)
Excess Proceeds Offer. (a) Not In the event that, pursuant to Section 4.10, the Issuer shall be required to commence an Excess Proceeds Offer, it shall follow the procedures specified below.
(b) The Excess Proceeds Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than five (5) days Business Days after the date termination of receipt by the Offer Period (the “Purchase Date”), the Issuer shall purchase the maximum principal amount of Notes and First Lien Obligations that may be purchased with such Excess Proceeds (which maximum principal amount of Notes and First Lien Obligations shall be the “Offer Amount”) or, if less than the Offer Amount has been tendered, all Notes tendered in response to the Excess Proceeds Offer.
(c) To the extent the Issuer or a Restricted Subsidiary is required under the terms of any First Lien Obligations, the Issuer shall make an offer to the holders of its Subsidiaries ofsuch First Lien Obligations on a pro rata basis with the holders of the Notes, with such proceeds. If the aggregate principal amount of Notes and other First Lien Obligations surrendered by holders thereof exceeds the amount of such Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis by lot, and, in the case of Global Notes, in accordance with the procedures of the Depositary. To the extent that the principal amount of Notes tendered pursuant to an Excess Proceeds Offer is less than the amount of such Excess Proceeds and such other First Lien Obligations, the Issuer may use any remaining Excess Proceeds in any manner not prohibited by this Indenture.
(d) If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a 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 Excess Proceeds Offer.
(e) Upon the commencement of any Excess Proceeds Offer, the Issuer shall send, by first class mail or electronically, a notice to each of the Holders of the Notes, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Excess Proceeds Offer. The notice, which shall govern the terms of the Excess Proceeds Offer, shall state:
(i) any Net Cash that the Excess Proceeds from Offer is being made pursuant to this Section 3.10 and the issuance length of any Indebtedness of time the Issuer and its Subsidiaries (other than Permitted Indebtedness) including, without limitation, in any proceeding under Debtor Relief Laws (such Net Cash Proceeds, “Debt Issuance Net Proceeds”),Excess Proceeds Offer shall remain open;
(ii) any Net Cash Proceeds from any Asset Disposition (to the extent the total aggregate amount of such Net Cash Proceeds received by the Issuer and/or its Subsidiaries in the same fiscal year (and not paid to the Holders of the Convertible Notes and/or other Priority Lien Debt to repay Priority Lien Obligations) are in excess of One Hundred Thousand Dollars ($100,000)) (such excessOffer Amount, the “Excess Asset Disposition Net Proceeds”), ; provided that solely with respect to purchase price and the Divestiture Transaction, the requirement under this Section 6.4(a)(ii) shall not apply to the Company Retained Net Cash Proceeds of such Asset Disposition provided that all Company Retained Net Cash Proceeds are deposited into a Controlled Account within five (5) days after receipt thereof.Purchase Date;
(iii) that any Net Cash Note not tendered or accepted for payment shall continue to accrue interest;
(iv) that, unless the Issuer defaults in making such payment, any Note accepted for payment pursuant to the Excess Proceeds from Offer shall cease to accrue interest after the Purchase Date;
(v) that Holders electing to have a Note purchased pursuant to any insurance or condemnation awards (once Excess Proceeds Offer shall be required to surrender the total aggregate amount Note, with the form entitled “Option of such Net Cash Proceeds received Holder to Elect Purchase” on the reverse of the Note completed, to the Issuer, a Depositary, if appointed by the Issuer and its Subsidiaries Issuer, or a Paying Agent at the address specified in such fiscal year the notice at least three Business Days before the Purchase Date;
(and not paid vi) that Holders shall be entitled to the Holders of Convertible Notes as a repurchase of the Convertible Notes and/or a repayment of other Priority Lien Debt) exceeds One Hundred Thousand Dollars ($100,000) (and to the extent repurchase is required, the required amount of such repurchase shall only be the net Cash Proceeds in excess of such amount (such excess, the “Excess Condemnation Net Proceeds”), and (ii) withdraw their election if the Issuer notifies Issuer, Depositary or Paying Agent, as the Agent of the Issuer’s or of its Subsidiaries’ intent to reinvest such Net Cash Proceeds on or prior to the fifth (5th) day after such receipt of Net Cash Proceeds then so long as no Default or Event of Default shall have occurred or be continuing at the time of such noticecase may be, at the time of reinvestmentreceives, or at any time in between, and (y) the proceeds of such insurance and/or condemnation award are held in a Controlled Account, the Issuer shall have the option, directly or through one or more Guarantors or its Subsidiaries, to use such Net Cash Proceeds to reinvest in similar productive assets of the business, in each case, (x) that are used or useful in the business of the Issuer and its Subsidiaries and (y) that comprise Collateral to the extent such property or asset sold or otherwise disposed of was Collateral, within one hundred and eighty (180) days of receipt of such Net Cash Proceeds (or if Issuer or the applicable Subsidiary enters into a binding commitment to reinvest such proceeds not later than the end expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such one hundred Holder is unconditionally withdrawing his election to have the Note purchased; and
(vii) that, if the aggregate principal amount of Notes surrendered by Holders and eighty (180) day period other First Lien Obligations tendered by the holders thereof exceeds the Offer Amount, the Trustee shall select the Notes to be purchased on a pro rata basis, by lot, and, in the case of Global Notes, in accordance with the good faith expectation that such proceeds will be applied to satisfy such reinvestment commitment within the next one hundred eighty (180) days, an extension for a period of up to an additional one hundred eighty (180) days from the end procedures of the initial one hundred and eighty Depositary (180) day period) (with such adjustments as may be deemed appropriate by the “Reinvestment Period”) and until the end Issuer so that only Notes in minimum denominations of the Reinvestment Period$2,000, such insurance and/or condemnation awards or integral multiples of $1,000 in excess thereof, shall not be considered Excess Condemnation Net Proceeds) orpurchased).
(ivf) any cashOn or before the Purchase Date, Cash Equivalents or other proceeds from any capital contributions to, or issuances or other sales of or transactions with respect to any Equity Interests of the Issuer shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or any of its Subsidiaries resulting in gross proceeds in excess of Seventy-Five Million Dollars ($75,000,000) in the aggregate in any six (6) month period after (but not including) the Closing DateAugust 13, 2021 (other than Equity Interests issued (A) pursuant to any employee stock or stock option compensation plan, (B) upon the Consummation of the Merger on the Closing Date as a result of the equity contribution occurring in connection therewith, (C) portions thereof tendered pursuant to the terms of Excess Proceeds Offer, or if less than the Convertible Note Offer Amount has been tendered, all Notes or portion thereof tendered, and deliver to the Purchase Agreement in order to purchase, redeem, convert Trustee an Officers’ Certificate stating that such Notes or otherwise exchange portions thereof were accepted for payment by the Convertible Notes Issuer in accordance with the terms of this Section 3.10. The Issuer, Depositary or Paying Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Note tendered by such Holder and accepted by the Issuer for purchase, and the Issuer shall promptly issue a new Note, and the Trustee shall authenticate and mail or deliver such new Note, to such Holder equal in principal amount to any unpurchased portion of the Note surrendered. In addition, the Issuer shall take any and all other actions required by the agreements governing any other First Lien Obligations. Any Note not so accepted shall be promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer shall publicly announce the results of the Excess Proceeds Offer on the Purchase Date.
(g) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act (or any successor rules) and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes pursuant to an Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer’s compliance with such laws and regulations shall not in each case the Convertible Notesand of itself be deemed to have caused a breach of its obligations under this Indenture.
(h) Other than as specifically provided in this Section 3.10 or Section 4.10, those warrants issued any purchase pursuant to this Section 3.10 shall be made pursuant to the Term Loan Credit Agreement provisions of Sections 3.02 and the Purchase Agreement), or (D) for purposes approved in writing by the Agent (such excess, “Excess Equity Issuance Net Proceeds”)3.05 hereof.
Appears in 1 contract
Samples: Indenture (Akumin Inc.)
Excess Proceeds Offer. (a) Not later than five When the cumulative amount of Excess Proceeds exceeds $35.0 million, the Issuers shall make an offer to all Holders of the Notes (5an “Excess Proceeds Offer”) days after to purchase the maximum principal amount of Notes that may be purchased out of such Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, together with accrued and unpaid interest to the date fixed for the closing of receipt by such offer in accordance with the Issuer or any of its Subsidiaries of
(i) any Net Cash Proceeds from the issuance of any Indebtedness of the Issuer and its Subsidiaries (other than Permitted Indebtedness) including, without limitation, procedures set forth in any proceeding under Debtor Relief Laws (such Net Cash Proceeds, “Debt Issuance Net Proceeds”),
(ii) any Net Cash Proceeds from any Asset Disposition (to this Indenture. To the extent Cedar Fair or a Restricted Subsidiary is required under the total aggregate amount terms of other First Lien Obligations of Cedar Fair or such Net Cash Proceeds received by Restricted Subsidiary, the Issuer and/or its Subsidiaries in the same fiscal year (and not paid Issuers shall make a pro rata offer to the Holders of the Convertible Notes and/or and the holders of such other Priority First Lien Debt Obligations with such Excess Proceeds. If any Issuer notifies the Trustee in writing that the aggregate principal amount of Notes and other First Lien Obligations surrendered by holders thereof exceeds the amount of such Excess Proceeds, the Trustee shall select the Notes to repay Priority be purchased on a pro rata basis or otherwise in accordance with the applicable procedures of the Depositary. To the extent that the principal amount of Notes and such other First Lien ObligationsObligations tendered pursuant to an Excess Proceeds Offer is less than the amount of such Excess Proceeds, the Issuers may use any remaining Excess Proceeds for general corporate purposes in compliance with the provisions of this Indenture. Upon completion of an Excess Proceeds Offer, the amount of Excess Proceeds shall be reset at zero.
(b) are in excess The Excess Proceeds Offer shall remain open for a period of One Hundred Thousand Dollars 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law ($100,000)) (such excess, the “Excess Asset Disposition Net ProceedsProceeds Offer Period”). No later than five Business Days after the termination of the Excess Proceeds Offer Period (the “Excess Proceeds Purchase Date”), ; provided that solely with respect the Issuers shall, to the Divestiture Transactionextent lawful, purchase the maximum principal amount of Notes and such other First Lien Obligations that may be purchased with such Excess Proceeds (which maximum principal amount of Notes and such other First Lien Obligations shall be the “Excess Proceeds Offer Amount”) or, if less than the Excess Proceeds Offer Amount has been tendered, all Notes tendered in response to the Excess Proceeds Offer.
(c) The Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act (or any successor rules) and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes pursuant to an Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 3.08, the requirement Issuers’ compliance with such laws and regulations shall not in and of itself be deemed to have caused a breach of their obligations under this Section 6.4(a)(ii3.08.
(d) If the Excess Proceeds Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall not apply be paid to the Company Retained Net Cash Person in whose name a Note is registered at the close of business on such record date.
(e) Upon the commencement of any Excess Proceeds Offer, the Issuers shall give in accordance with Section 11.02 hereof a notice to each of the Holders of the Notes, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Asset Disposition provided Holders to tender Notes pursuant to the Excess Proceeds Offer. The notice, which shall govern the terms of the Excess Proceeds Offer, shall state:
(i) that all Company Retained Net Cash the Excess Proceeds are deposited into a Controlled Account within five Offer is being made pursuant to this Section 3.08 and the length of time the Excess Proceeds Offer shall remain open;
(5ii) days after receipt thereof.the Excess Proceeds Offer Amount, the purchase price and the Excess Proceeds Purchase Date;
(iii) that any Net Cash Note not tendered or accepted for payment shall continue to accrue interest;
(iv) that, unless the Issuers default in making such payment, any Note accepted for payment pursuant to the Excess Proceeds from Offer shall cease to accrue interest after the Excess Proceeds Purchase Date;
(v) that Holders electing to have a Note purchased pursuant to any insurance Excess Proceeds Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Issuers, the Depositary (if the Notes are Global Notes), or condemnation awards a Paying Agent at the address specified in the notice at least three Business Days before the Excess Proceeds Purchase Date;
(once vi) that Holders shall be entitled to withdraw their election if the total aggregate Issuers, depositary or Paying Agent, as the case may be, receives, not later than the expiration of the Excess Proceeds Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Net Cash Proceeds received Holder is unconditionally withdrawing his election to have the Note purchased;
(vii) that, if the aggregate principal amount of Notes surrendered by Holders and other First Lien Obligations tendered by the Issuer holders thereof exceeds the Excess Proceeds Offer Amount, the Trustee shall select the Notes and its Subsidiaries the Issuers shall select the other First Lien Obligations to be purchased on a pro rata basis or otherwise in accordance with the applicable procedures of the Depositary (with such fiscal year adjustments as may be deemed appropriate by the Issuers so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be purchased); and
(and not paid viii) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the Holders of Convertible Notes as a repurchase unpurchased portion of the Convertible Notes and/or a repayment of other Priority Lien Debtsurrendered.
(f) exceeds One Hundred Thousand Dollars ($100,000) (and On or before the Excess Proceeds Purchase Date, the Issuers shall, to the extent repurchase is requiredlawful, accept for payment, on a pro rata basis to the extent necessary, the required amount Excess Proceeds Offer Amount of such repurchase shall only be the net Cash Proceeds in excess of such amount (such excess, the “Excess Condemnation Net Proceeds”), Notes or portions thereof validly tendered and (ii) if the Issuer notifies the Agent of the Issuer’s or of its Subsidiaries’ intent to reinvest such Net Cash Proceeds on or prior not properly withdrawn pursuant to the fifth (5th) day after such receipt of Net Cash Excess Proceeds then so long as no Default or Event of Default shall have occurred or be continuing at the time of such notice, at the time of reinvestmentOffer, or at any time in betweenif less than the Excess Proceeds Offer Amount has been validly tendered and not properly withdrawn, all Notes or portions thereof validly tendered and (y) the proceeds of such insurance and/or condemnation award are held in a Controlled Account, the Issuer shall have the option, directly or through one or more Guarantors or its Subsidiaries, to use such Net Cash Proceeds to reinvest in similar productive assets of the businessnot properly withdrawn, in each case, (x) that are used or useful in the business denominations of the Issuer $2,000 and its Subsidiaries integral multiples of $1,000 in excess thereof, and (y) that comprise Collateral deliver to the extent such property or asset sold or otherwise disposed of was Collateral, within one hundred and eighty (180) days of receipt of such Net Cash Proceeds (or if Issuer or the applicable Subsidiary enters into a binding commitment to reinvest such proceeds not later than the end of such one hundred and eighty (180) day period with the good faith expectation Trustee an Officer’s Certificate stating that such proceeds will be applied to satisfy such reinvestment commitment within Notes or portions thereof were accepted for payment by the next one hundred eighty (180) days, an extension for a period of up to an additional one hundred eighty (180) days from the end of the initial one hundred and eighty (180) day period) (the “Reinvestment Period”) and until the end of the Reinvestment Period, such insurance and/or condemnation awards shall not be considered Excess Condemnation Net Proceeds) or
(iv) any cash, Cash Equivalents or other proceeds from any capital contributions to, or issuances or other sales of or transactions with respect to any Equity Interests of the Issuer or any of its Subsidiaries resulting in gross proceeds in excess of Seventy-Five Million Dollars ($75,000,000) in the aggregate in any six (6) month period after (but not including) the Closing DateAugust 13, 2021 (other than Equity Interests issued (A) pursuant to any employee stock or stock option compensation plan, (B) upon the Consummation of the Merger on the Closing Date as a result of the equity contribution occurring in connection therewith, (C) pursuant to the terms of the Convertible Note and the Purchase Agreement in order to purchase, redeem, convert or otherwise exchange the Convertible Notes Issuers in accordance with the terms of thereof, in each case the Convertible Notes, those warrants issued pursuant to the Term Loan Credit Agreement and the Purchase Agreement), or (D) for purposes approved in writing by the Agent (such excess, “Excess Equity Issuance Net Proceeds”)this Section 3.
Appears in 1 contract
Samples: Indenture (Cedar Fair L P)
Excess Proceeds Offer. (a) Not If, as of the first day of any calendar month, the aggregate amount of Sale Excess Proceeds and Loss Excess Proceeds exceeds 10% of consolidated total assets of the Company, and if the aggregate amount of Sale Excess Proceeds and Loss Excess Proceeds in excess of 10% of consolidated total assets that has not theretofore been subject to an Excess Proceeds Offer (the ``Excess Proceeds Offer Amount''), totals at least $10,000,000, the Issuer must, not later than five the fifteenth Business Day of such month, make an offer (5an ``Excess Proceeds Offer'') days after to purchase from the Holders pursuant to and subject to the conditions contained in this Indenture, Secured Notes at a purchase price equal to 100% of their principal amount, plus any accrued interest (including Additional Amounts and Special Interest, if any) to the date of receipt purchase. The New Senior Note Indenture requires that the Company must, not later than the fifteenth Business Day of such month, also make an offer to purchase new Senior Notes at a purchase price equal to 100% of their principal amount, plus any accrued interest (including "Special Interest" (as defined in the New Senior Note Indenture), if any) to the date of purchase. The total amount of the Secured Notes that are required to be purchased by the Issuer and of New Senior Notes that are required to be purchased by the Company shall equal the Excess Proceeds Offer Amount (an ``Excess Proceeds Payment''). The Company will prepay the appropriate tranches of the Issuer Loans on a pro rata basis, or make loans constituting Subordinated Obligations to the Issuer, to permit the Issuer to purchase any Secured Notes validly tendered pursuant to an Excess Proceeds Offer. Any amounts remaining after all Secured Notes and all New Senior Notes validly tendered are purchased shall no longer constitute Sale Excess Proceeds or Loss Excess Proceeds.
(b) The Excess Proceeds Offer will remain open for a period of at least 30 days following its Subsidiaries ofcommencement but no longer than 60 days, except to the extent that a longer period is required by applicable law (the "Excess Proceeds Offer Period"). On the Business Day following the termination of the Excess Proceeds Offer Period (the "Excess Proceeds Purchase Date"), the Issuer will purchase the principal amount of Secured Notes required to be purchased pursuant to this Section 3.10 (i.e., the portion of the Excess Proceeds Offer Amount allocable to the Secured Notes) or, if less than the portion of Excess Proceeds Offer Amount allocable to the Secured Notes has been so validly tendered and not properly withdrawn, all Secured Notes validly tendered and not properly withdrawn in response to the Excess Proceeds Offer. Payment for any Secured Notes so purchased will be made in the same manner as interest payments are made on the Secured Notes. If the Excess Proceeds Purchase Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest and Special Interest, if any, and Additional Amounts, if any, shall be paid to the Person in whose name a Secured Note is registered at the close of business on such Record Date, and no additional interest (or Special Interest (to the extent involving interest that is due and payable on such Interest Payment Date), if any) shall be payable to Holders who tender Secured Notes pursuant to the Excess Proceeds Offer.
(c) Upon the commencement of an Excess Proceeds Offer, the Issuer shall send, by first class mail, a notice to the Trustee and each of the Holders. The notice shall contain all instructions and materials necessary to enable such Holders to tender Secured Notes pursuant to the Excess Proceeds Offer. The Excess Proceeds Offer shall be made to all Holders. The notice, which shall govern the terms of the Excess Proceeds Offer, shall state:
(i) any Net Cash that the Excess Proceeds from Offer is being made pursuant to this Section 3.10 and the issuance of any Indebtedness of Excess Proceeds Offer Period during which the Issuer and its Subsidiaries (other than Permitted Indebtedness) including, without limitation, in any proceeding under Debtor Relief Laws (such Net Cash Proceeds, “Debt Issuance Net Proceeds”),
Excess Proceeds Offer shall remain open; (ii) any Net Cash the Excess Proceeds from any Asset Disposition (to the extent the total aggregate amount of such Net Cash Proceeds received by the Issuer and/or its Subsidiaries in the same fiscal year (and not paid to the Holders of the Convertible Notes and/or other Priority Lien Debt to repay Priority Lien Obligations) are in excess of One Hundred Thousand Dollars ($100,000)) (such excessOffer Amount, the “Excess Asset Disposition Net Proceeds”), ; provided that solely with respect to the Divestiture Transaction, the requirement under this Section 6.4(a)(ii) shall not apply to the Company Retained Net Cash Proceeds of such Asset Disposition provided that all Company Retained Net Cash Proceeds are deposited into a Controlled Account within five (5) days after receipt thereof.
(iii) any Net Cash Proceeds from any insurance or condemnation awards (once the total aggregate amount of such Net Cash Proceeds received by the Issuer and its Subsidiaries in such fiscal year (and not paid to the Holders of Convertible Notes as a repurchase of the Convertible Notes and/or a repayment of other Priority Lien Debt) exceeds One Hundred Thousand Dollars ($100,000) (and to the extent repurchase is required, the required amount of such repurchase shall only be the net Cash Proceeds in excess of such amount (such excess, the “Excess Condemnation Net Proceeds”), and (ii) if the Issuer notifies the Agent of the Issuer’s or of its Subsidiaries’ intent to reinvest such Net Cash Proceeds on or prior to the fifth (5th) day after such receipt of Net Cash Proceeds then so long as no Default or Event of Default shall have occurred or be continuing at the time of such notice, at the time of reinvestment, or at any time in between, and (y) the proceeds of such insurance and/or condemnation award are held in a Controlled Account, the Issuer shall have the option, directly or through one or more Guarantors or its Subsidiaries, to use such Net Cash Proceeds to reinvest in similar productive assets of the business, in each case, (x) that are used or useful in the business of the Issuer and its Subsidiaries and (y) that comprise Collateral to the extent such property or asset sold or otherwise disposed of was Collateral, within one hundred and eighty (180) days of receipt of such Net Cash Proceeds (or if Issuer or the applicable Subsidiary enters into a binding commitment to reinvest such proceeds not later than the end of such one hundred and eighty (180) day period with the good faith expectation that such proceeds will be applied to satisfy such reinvestment commitment within the next one hundred eighty (180) days, an extension for a period of up to an additional one hundred eighty (180) days from the end of the initial one hundred and eighty (180) day period) (the “Reinvestment Period”) and until the end of the Reinvestment Period, such insurance and/or condemnation awards shall not be considered Excess Condemnation Net Proceeds) or
(iv) any cash, Cash Equivalents or other proceeds from any capital contributions to, or issuances or other sales of or transactions with respect to any Equity Interests of the Issuer or any of its Subsidiaries resulting in gross proceeds in excess of Seventy-Five Million Dollars ($75,000,000) in the aggregate in any six (6) month period after (but not including) the Closing DateAugust 13, 2021 (other than Equity Interests issued (A) pursuant to any employee stock or stock option compensation plan, (B) upon the Consummation of the Merger on the Closing Date as a result of the equity contribution occurring in connection therewith, (C) pursuant to the terms of the Convertible Note Offer Purchase Price and the Excess Proceeds Purchase Agreement in order to purchase, redeem, convert or otherwise exchange the Convertible Notes in accordance with the terms of thereof, in each case the Convertible Notes, those warrants issued pursuant to the Term Loan Credit Agreement and the Purchase Agreement), or (D) for purposes approved in writing by the Agent (such excess, “Excess Equity Issuance Net Proceeds”).Date;
Appears in 1 contract
Samples: Indenture (R&b Falcon Corp)
Excess Proceeds Offer. (ai) Not later than five (5) days after the If on any date of receipt by the Issuer or any of its Subsidiaries of
(i) any Subsidiary shall receive Net Cash Proceeds from the issuance of any Indebtedness of Disposition, the Issuer and its Subsidiaries (other than Permitted Indebtedness) includingor such Subsidiary may, without limitation, in any proceeding under Debtor Relief Laws (within 180 days after receipt of such Net Cash Proceeds, “Debt Issuance apply an amount equal to 100% of such Net Cash Proceeds”),, at its option: (1) to reduce obligations under Indebtedness that is either secured on a priority basis to the Notes or is otherwise contractually senior
(ii) any To the extent that the Issuer or such Subsidiary does not invest or apply an amount equal to the Net Cash Proceeds from as provided and within the time period set forth in Section 2.1(c)(i), the Net Cash Proceeds less amounts so invested or applied will be deemed to constitute “Excess Proceeds” (provided that any Asset amount of proceeds offered to Purchasers pursuant to Section 2.1(c)(i)(2)(x) or pursuant to an Excess Proceeds Offer made at any time after the Disposition (shall be deemed to have been applied as required and shall not be deemed to be Excess Proceeds without regard to the extent to which such offer is accepted by the total Purchasers). When the aggregate amount of such Net Cash Excess Proceeds received by exceeds $5.0 million, the Issuer and/or its Subsidiaries shall make an offer (an “Excess Proceeds Offer”) to all Purchasers to purchase the maximum principal amount of such Notes that may be purchased out of the Excess Proceeds at an offer price in the same fiscal year (and not paid cash in an amount equal to the Holders of the Convertible Notes and/or other Priority Lien Debt to repay Priority Lien Obligations) are in excess of One Hundred Thousand Dollars ($100,000applicable Redemption Price)) (such excess, plus accrued and unpaid interest, if any to, but excluding, the “date fixed for the closing of such offer in accordance with the procedures set forth in this Agreement. The Issuer will commence an Excess Asset Disposition Net Proceeds”), ; provided that solely Proceeds Offer with respect to Excess Proceeds within 30 Business Days after the Divestiture Transactiondate that such Excess Proceeds exceed $5.0 million by sending to each Purchaser a written notice of such Excess Proceeds Offer at least 30 days but not more than 60 days before the purchase date (which notice shall, if the requirement under this Section 6.4(a)(ii) shall not apply Notes are to be purchased in part only, state the portion of the principal amount thereof that is to be purchased). The Issuer may satisfy the foregoing obligations with respect to such Excess Proceeds from a Disposition by making an Excess Proceeds Offer with respect to such Excess Proceeds at any time prior to the Company Retained Net Cash expiration of the application period or by electing to make an Excess Proceeds Offer with respect to such Excess Proceeds before the aggregate amount of such Asset Disposition provided that all Company Retained Net Cash Excess Proceeds are deposited into a Controlled Account within five (5) days after receipt thereofexceeds $5.0 million.
(iii) any Net Cash Proceeds from any insurance or condemnation awards (once To the total extent that the aggregate amount of Notes a tendered or otherwise surrendered in connection with an Excess Proceeds Offer made with Excess Proceeds is less than the amount offered in an Excess Proceeds Offer, the Issuer may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Agreement. If the aggregate principal amount of Notes tendered or otherwise surrendered by holders thereof exceeds the amount offered in an Excess Proceeds Offer, the Issuer shall select the Notes to be purchased on a pro rata basis or such Net Cash other basis as the Issuer believes is reasonably necessary. Upon completion of any such Excess Proceeds received Offer, the amount of Excess Proceeds shall be reset at zero. To the extent the Excess Proceeds exceed the outstanding aggregate principal amount of the Notes, the Issuer need only make an Excess Proceeds Offer up to the outstanding aggregate principal amount of Notes at the applicable Redemption Price, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase, and any additional Excess Proceeds shall not be subject to this Section 2.1(c) and shall be permitted to be used for any purpose in the Issuer’s discretion.
(iv) Notwithstanding the provisions of this Section 2.1(c), the Issuer shall not be required to make an Excess Proceeds Offer if a third party makes an offer to repurchase the Notes at a price at or above the applicable Redemption Price thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase, in the manner, at the times, and otherwise in compliance with the requirements set forth in this Agreement applicable to an Excess Proceeds Offer made by the Issuer and its Subsidiaries in such fiscal year (purchases all Notes validly tendered and not paid to the Holders of Convertible Notes as a repurchase of the Convertible Notes and/or a repayment of other Priority Lien Debt) exceeds One Hundred Thousand Dollars ($100,000) (and to the extent repurchase is required, the required amount of validly withdrawn under such repurchase shall only be the net Cash Proceeds in excess of such amount (such excess, the “Excess Condemnation Net Proceeds”), and (ii) if the Issuer notifies the Agent of the Issuer’s or of its Subsidiaries’ intent to reinvest such Net Cash Proceeds on or prior to the fifth (5th) day after such receipt of Net Cash Proceeds then so long as no Default or Event of Default shall have occurred or be continuing at the time of such notice, at the time of reinvestment, or at any time in between, and (y) the proceeds of such insurance and/or condemnation award are held in a Controlled Accountoffer. Additionally, the Issuer shall have the option, directly or through one or more Guarantors or its Subsidiaries, not be required to use such Net Cash make an Excess Proceeds to reinvest in similar productive assets of the business, in each case, (x) that are used or useful in the business of Offer if the Issuer and its Subsidiaries and (y) that comprise Collateral has previously issued a notice of a full redemption pursuant to the extent such property or asset sold or otherwise disposed provisions of was Collateral, within one hundred and eighty (180) days of receipt of such Net Cash Proceeds (or if Issuer or the applicable Subsidiary enters into a binding commitment to reinvest such proceeds not later than the end of such one hundred and eighty (180) day period with the good faith expectation that such proceeds will be applied to satisfy such reinvestment commitment within the next one hundred eighty (180) days, an extension for a period of up to an additional one hundred eighty (180) days from the end of the initial one hundred and eighty (180) day period) (the “Reinvestment Period”) and until the end of the Reinvestment Period, such insurance and/or condemnation awards shall not be considered Excess Condemnation Net Proceeds) orSection 2.7.
(ivv) any cash, Cash Equivalents or other proceeds from any capital contributions to, or issuances or other sales The provisions of or transactions with respect this Section 2.1(c) relative to any Equity Interests of the Issuer or any of its Subsidiaries resulting in gross proceeds in excess of Seventy-Five Million Dollars ($75,000,000) in Issuer’s obligation to make an offer to repurchase the aggregate in any six (6) month period after (but not including) the Closing DateAugust 13, 2021 (other than Equity Interests issued (A) pursuant to any employee stock or stock option compensation plan, (B) upon the Consummation of the Merger on the Closing Date Notes as a result of an Disposition may be waived or modified at any time with the equity contribution occurring written consent of the Required Purchasers.
(vi) A new Note in connection therewith, (C) pursuant principal amount equal to the terms unpurchased portion of any Note purchased in part will be issued in the name of the Convertible Note Purchaser thereof upon cancellation of the Note. On and after the Purchase Agreement purchase date, unless the Issuer defaults in order payment of the purchase price, interest shall cease to purchase, redeem, convert accrue on Notes or otherwise exchange the Convertible Notes in accordance with the terms of thereof, in each case the Convertible Notes, those warrants issued pursuant to the Term Loan Credit Agreement and the Purchase Agreement), or (D) for purposes approved in writing by the Agent (such excess, “Excess Equity Issuance Net Proceeds”)portions thereof purchased.
Appears in 1 contract
