Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; (2) at least 80% of the consideration thereof received by the Company or such Restricted Subsidiary is in 57 (a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash. (b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). (1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3). (2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06. (3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered. (4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder. (d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.
Appears in 3 contracts
Samples: Indenture (Blum Capital Partners Lp), Indenture (Cbre Holding Inc), Indenture (Fs Equity Partners Iii Lp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company Issuer shall not, and nor shall not the Issuer permit any Restricted Subsidiary toSubsidiary, directly or indirectly, to consummate any Asset Disposition unless unless:
(1) the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as such Fair Market Value to be determined on the value date of all non-cash consideration), as determined in good faith by the Board of Directors, contractually agreeing to such Asset Disposition) of the shares Equity Interests and assets subject to such Asset Disposition; and
(2) at least 8075% of the consideration thereof from all such Asset Dispositions received since the Effective Date by the Company Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents.
(b) Within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, the Issuer or any Restricted Subsidiary may apply, at its option, an amount in cash (a “Net Available Cash Amount”) equal to 100% of the Net Available Cash from such Asset Disposition:
(1) to repay any Senior Indebtedness of the Issuer or its Restricted Subsidiaries or to make an offer to repurchase or redeem such Indebtedness, provided that such repurchase or redemption closes within 45 days after the end of such 365-day period; and, in each case, owing to a Person other than the Issuer or any Restricted Subsidiary;
(2) to acquire all or substantially all of the properties or assets of, or any Capital Stock of, a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Permitted Business is or becomes a Restricted Subsidiary of the Issuer;
(3) to make a capital expenditure in a Permitted Business;
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; or
(5) in any combination of applications described in (1), (2), (3) or (4) above; provided that pending the final application of any such Net Available Cash Amounts in accordance with Section 4.5(b)(1), (2), (3), (4) or (5) and Section 4.5(d), the Issuer and the Restricted Subsidiaries may Invest or otherwise use such Net Available Cash Amounts in any manner not prohibited by this Indenture; provided, further, that in the case of Section 4.5(b)(2), (3) and (4), a binding commitment to invest in properties, assets, Capital Stock, or to make such capital expenditures shall be treated as a permitted application of Net Available Cash Amounts from the date of such commitment so long as the Issuer or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Available Cash Amounts will be applied to satisfy such commitment within 365 days of such commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before such Net Available Cash Amounts are applied in 57connection therewith, the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 365 days of such cancellation or termination, it being understood that if a Second Commitment is later cancelled or terminated for any reason before such Net Available Cash Amounts are applied, then such Net Available Cash Amounts shall constitute Excess Proceeds.
(ac) except For the purposes of Section 4.5(a)(2) and for no other purpose, the following shall be deemed to be cash:
(1) any liabilities (as shown on the Issuer’s or such Restricted Subsidiary’s most recent balance sheet) of the Issuer or any Restricted Subsidiary (other than (x) liabilities that are by their terms subordinated to the Notes or the Note guarantees, (y) Preferred Stock and (z) Disqualified Stock) that are assumed by the transferee of any such assets (or that are otherwise cancelled, forgiven or terminated in connection with the transaction with such transferee);
(2) the principal amount of any Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Disposition (other than intercompany debt owed to the Issuer or the Restricted Subsidiaries), to the extent that the aggregate Net Available Cash Issuer and each Restricted Subsidiary are released from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application any guarantee of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness payment of the Company or any Restricted Subsidiary and the release principal amount of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and Disposition;
(23) securities any Designated Non-Cash Consideration received by the Company Issuer or such Restricted Subsidiary in respect of such sale, transfer, lease or other disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (3) that is at that time outstanding, not in excess of 5% of Consolidated Net Tangible Assets of the Issuer, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(4) any securities or other Obligations received by the Issuer or any Restricted Subsidiary from the transferee that are promptly converted by the Company Issuer or such Restricted Subsidiary into cashcash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Disposition.
(bd) In Any amount of Net Available Cash from Asset Dispositions that is not applied or invested as provided in Section 4.5(b) shall be deemed to constitute “Excess Proceeds.” On the event of 366th day after an Asset Disposition, or earlier at the Issuer’s option, if the aggregate amount of Excess Proceeds exceeds $50 million, the Issuer or a Restricted Subsidiary shall make an offer (“Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness Offer”) to all Holders of the Company) pursuant Notes and, at the Issuer’s election, to Section 4.06(a)(3)(C)the holders of any Pari Passu Indebtedness, to purchase the Company shall purchase Securities tendered pursuant to maximum aggregate principal amount of Notes and any such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds, at an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal in cash in an amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, equal to 100% of the accreted value principal amount thereof), without premium, plus accrued but and unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser priceinterest, if any, as may be provided for by to but not including the terms date of such Senior Subordinated Indebtedness purchase (subject to the right of Holders of record on a record date to receive interest due on the Company) relevant interest payment date), in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c)this Indenture or the agreements governing the relevant Pari Passu Indebtedness, as applicable, in each case in denominations of $2,000 and larger integral multiples of $1,000 in excess thereof. The Issuer or such Restricted Subsidiary will commence an Asset Disposition Offer with respect to Excess Proceeds by sending (or otherwise delivered in accordance with the applicable procedures of DTC) the notice required pursuant to the terms of this Indenture to the Holders of the Notes at each Holder’s registered address, with a copy to the Trustee. To the extent that the aggregate amount of Notes and the relevant Pari Passu Indebtedness validly tendered and not validly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Issuer or a Restricted Subsidiary may use any remaining Excess Proceeds for any purpose, subject to other covenants contained in this Indenture. If the aggregate purchase price principal amount of Securities (Notes surrendered by Holders thereof and any other Senior Subordinated Pari Passu Indebtedness of the Company) tendered pursuant to the Offer surrendered by holders or lenders, collectively, exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company shall select the Securities Notes and other Senior Subordinated Pari Passu Indebtedness to be purchased repurchased shall be selected on a pro rata basis but in round denominations, which in on the case basis of the Securities will be denominations of $1,000 aggregate principal amount of tendered Notes and tendered Pari Passu Indebtedness. Upon completion of such Asset Disposition Offer, regardless of the amount of Excess Proceeds used to purchase Notes or multiples thereofother Pari Passu Indebtedness pursuant to such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(e) The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). The Company shall not be No later than five Business Days after the termination of the Asset Disposition Offer Period, the Issuer or the applicable Restricted Subsidiary will apply all Excess Proceeds to the purchase of the aggregate principal amount of Notes and, if applicable, Pari Passu Indebtedness required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) be purchased pursuant to this Section 4.06 4.5 (the “Asset Disposition Offer Amount”) or, if the Net Available Cash available therefor is less than $10.0 million the Asset Disposition Offer Amount of Notes (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect and, if applicable, Pari Passu Indebtedness) has been so validly tendered and not validly withdrawn, all Notes and Pari Passu Indebtedness validly tendered and not validly withdrawn in response to the Net Available Cash from Asset Disposition Offer. Payment for any subsequent Asset Disposition)Notes so purchased will be made in the same manner as interest payments are made.
(1f) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q Issuer and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall Restricted Subsidiary will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this SectionSection 4.5. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 4.5, the Company shall Issuer and such Restricted Subsidiary will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section 4.5 by virtue of its compliance with such securities laws or regulations.
Appears in 3 contracts
Samples: Indenture (Hess Midstream LP), Indenture (Hess Midstream LP), Indenture (Hess Midstream LP)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as such Fair Market Value to be determined on the value date of all non-cash consideration), as determined in good faith by the Board of Directors, contractually agreeing to such Asset Disposition) of the shares and or other assets subject to such Asset Disposition; and
(2) at least 8075% of the aggregate consideration thereof received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, from such Asset Disposition and all other Asset Dispositions since the Issue Date, on a cumulative basis, is in 57the form of cash or Cash Equivalents or Additional Assets, or any combination thereof.
(ab) The Net Available Cash from such Asset Disposition may be applied, within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, by the Company or such Restricted Subsidiary, as the case may be:
(1) to prepay, repay, redeem or purchase Pari Passu Indebtedness of the Company (including the Notes) or a Subsidiary Guarantor or any Indebtedness (other than Disqualified Stock) of a Restricted Subsidiary that is not a Subsidiary Guarantor (in each case, excluding Indebtedness owed to the Company or an Affiliate of the Company); provided, however, that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this Section 4.11(b)(1), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; or
(2) to make capital expenditures in the Oil and Gas Business or to invest in Additional Assets; provided, that pending the final application of any such Net Available Cash in accordance with clause (1) or clause (2) of this Section 4.11(b), the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(c) Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in Section 4.11(b) will be deemed to constitute “Excess Proceeds.” Not later than the 366th day from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Pari Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount (or, in the event such Pari Passu Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof) of the Notes and Pari Passu Notes plus accrued and unpaid interest, if any (or in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Indebtedness), to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Notes, as applicable, in each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000. If the aggregate principal amount of Notes surrendered by Holders thereof and other Pari Passu Notes surrendered by Holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Notes. To the extent that the aggregate principal amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to the Articles Four and Five of this Indenture. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(d) The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the aggregate Net Available Cash from all “Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 millionDisposition Offer Period”). Pending application No later than five Business Days after the termination of Net Available Cash the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.06(a)4.11 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered and not properly withdrawn, all Notes and Pari Passu Notes validly tendered and not properly withdrawn in response to the Asset Disposition Offer.
(e) If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such Net Available Cash shall record date, and no further interest will be invested payable to Holders who tender Notes pursuant to the Asset Disposition Offer.
(f) On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Notes so validly tendered and not properly withdrawn, in Temporary Cash Investments each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or applied portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.11 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. The Company or the paying agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Disposition Offer Period) mail or deliver to temporarily reduce revolving credit indebtednesseach tendering Holder of Notes or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Notes or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided, that each such new Note will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess of $2,000. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Note not so accepted will be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date.
(g) The Company will comply, to the extent applicable, with the requirements of Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to an Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.11, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of its compliance with such securities laws or regulations.
(h) For the purposes of this clause (2) of Section 4.06(a)4.11(a) above, the following are will be deemed to be cash or cash equivalents: cash:
(1) the assumption by the transferee of Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the Company or Indebtedness of a Restricted Subsidiary (other than Guarantor Subordinated Obligations or Disqualified Stock of any Restricted Subsidiary that is a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with Section 4.11(b)(1)); and
(2) securities securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
cash within 180 days after receipt thereof. Notwithstanding the foregoing, the 75% limitation referred to in clause (b2) In the event of an Section 4.11(a) above shall be deemed satisfied with respect to any Asset Disposition that requires in which the purchase of Securities (and other Senior Subordinated Indebtedness cash or Cash Equivalents portion of the Company) pursuant to Section 4.06(a)(3)(C)consideration received therefrom, the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) determined in accordance with the procedures (including prorating in foregoing provision on an after-tax basis, is equal to or greater than what the event of overafter-subscription) set forth in Section 4.06(c). If tax proceeds would have been had such Asset Disposition complied with the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition)aforementioned 75% limitation.
(1i) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples The requirement of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a4.11(b) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security above shall be deemed to have been accepted for purchase at be satisfied if an agreement (including a lease, whether a capital lease or an operating lease) committing to make the time the Trustee, directly acquisitions or through an agent, mails or delivers payment therefor expenditures referred to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, therein is entered into by the Company shall comply with or its Restricted Subsidiary within the applicable securities laws specified time period and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance such Net Available Cash is subsequently applied in accordance with such securities laws or regulationsagreement within six months following such agreement.
Appears in 3 contracts
Samples: Indenture (SM Energy Co), Indenture (SM Energy Co), Indenture (SM Energy Co)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless unless: (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; (2) at least 80% of the consideration thereof received by the Company or such Restricted Subsidiary is in 57
the form of cash or cash equivalents; and (a3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) FIRST, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Indebtedness (other than any Disqualified Stock) of CB Richard or any Wholly Owned Subsidiary (in each case other xxxx Xxxxxtedness owed to the Company or an Affiliate of the Company) within fifteen months from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; (B) SECOND, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) THIRD, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an Offer to the holders of the Securities (and to holders of other unsubordinated Indebtedness of the Company designated by the Company) to purchase Securities (and such other unsubordinated Indebtedness of the Company) pursuant to and subject to the conditions of Section 4.6(b); PROVIDED, HOWEVER, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 4.6, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 4.6(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a4.6(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a4.6(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a4.6(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated unsubordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C4.6(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated unsubordinated Indebtedness of the Company) (the "OfferOFFER") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated unsubordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), ) without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated unsubordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated unsubordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c4.6(c). If the aggregate purchase price of Securities (and any other Senior Subordinated unsubordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated unsubordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated unsubordinated Indebtedness of the Company) pursuant to this Section 4.06 4.6 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b4.6(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase DatePURCHASE DATE") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer AmountOFFER AMOUNT"), including information as to any other Senior Subordinated unsubordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a4.6(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated unsubordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer PeriodOFFER PERIOD"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.064.6.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.
Appears in 3 contracts
Samples: Indenture (Koll Donald M), Indenture (Cb Richard Ellis Services Inc), Indenture (Cb Richard Ellis Services Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; (2) at least 80% of the consideration thereof received by the Company or such Restricted Subsidiary is in 57in
(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-over- subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.
Appears in 3 contracts
Samples: Indenture (Cb Richard Ellis Services Inc), Indenture (Cb Richard Ellis Services Inc), Indenture (Koll Donald M)
Limitation on Sales of Assets and Subsidiary Stock. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(a) The Company shall notthe Borrower or the Restricted Subsidiary, and shall not permit any Restricted Subsidiary toas the case may be, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at the time of such the Asset Disposition at least equal to the fair market value of the assets subject to the Asset Disposition (determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by senior management of the Borrower or, if the consideration with respect to such Asset Disposition exceeds $10,000,000, the Board of Directors of the Borrower (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; and
(2b) at least 8075% of the consideration thereof from the Asset Disposition received by the Company Borrower or the Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. The Borrower or such Restricted Subsidiary, as the case may be, may elect to apply all or any portion of the Net Available Cash from such Asset Disposition either:
(i) to prepay, repay, purchase, repurchase, redeem, defease or otherwise acquire or retire Loans under this Agreement, Second Lien Notes, loans under the First Lien Credit Agreements, Existing 2015 Senior Notes, Existing 2016 Senior Notes or Existing Subordinate Notes within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided that, in connection with any prepayment, repayment, purchase, repurchase, redemption, defeasance, or acquisition of Indebtedness pursuant to this clause (c), the Borrower or such Restricted Subsidiary is will retire such Indebtedness and, in 57the case of revolving Indebtedness, will cause the related commitment (if any) to be permanently reduced by an amount equal to the principal amount so retired; or
(aii) to invest in Additional Assets within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided that, pending the final application of any such Net Available Cash in accordance with clauses (c) or (d) above, the Borrower and its Restricted Subsidiaries may temporarily reduce Senior Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Agreement. Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in the preceding paragraph will be deemed to constitute “Excess Proceeds.” On the 366th day after an Asset Disposition, if the aggregate amount of Excess Proceeds exceeds $20,000,000, the Borrower must make an offer (an “Asset Disposition Offer”) to all Lenders and, to the extent required by the terms of the applicable governing documents of any Indebtedness secured by a Prior Lien or by any other Pari Passu Debt (collectively, the “Subject Debt”), to all holders of such Subject Debt, to prepay or purchase the maximum principal amount of Loans and such Subject Debt to which the Asset Disposition Offer applies that may be prepaid or purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Loans and such Subject Debt plus accrued and unpaid interest to the date of purchase, in accordance with the procedures established by the Administrative Agent for the Loans or set forth in the Indenture or the agreements governing such Subject Debt, as applicable; provided, that any such Asset Disposition Offer may be deferred if (but only for so long as) the Borrower reasonably anticipates that no prepayment of Loans and Subject Debt pursuant thereto would be permitted on the Asset Disposition Purchase Date (as defined below) under the US First Lien Credit Agreement (and the Borrower agrees that during the period of any such deferral, the aggregate amount of cash and Cash Equivalents held by the Borrower and its Subsidiaries shall not exceed $25,000,000). To the extent that the aggregate amount of Loans and Subject Debt so validly offered for prepayment or tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Borrower may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in this Agreement. If the aggregate principal amount of Loans offered for prepayment or surrendered by Lenders and other Subject Debt surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Administrative Agent shall select the Loans and Subject Debt to be prepaid or purchased pro rata on the basis of the aggregate principal amount of tendered Loans and Subject Debt. Upon completion of the Asset Disposition Offer, the amount of Excess Proceeds will be reset at zero. For the avoidance of doubt, in the event any Subject Debt requires a prepayment of Indebtedness rather than an offer to prepay or repurchase Indebtedness, the foregoing references to offers shall be deemed to refer to prepayments made in accordance with the terms of such Subject Debt; if the provisions of any other Subject Debt provide for a longer period for an offer to remain open or for payment to be made than is provided hereunder (the “Later Debt”), then (1) the portion of the Excess Proceeds that would be paid to holders of the Later Debt if all such holders accepted the offer shall be set aside (the “Later Debt Proceeds”), (2) the Asset Disposition Offer shall be conducted with respect to the remainder of such Excess Proceeds as provided herein and (3) following the conclusion of the offer and prepayment process for the Later Debt, any Later Debt Proceeds not applied to prepay or purchase Later Debt shall be applied to prepay or purchase the Loans or other Subject Debt of the holders thereof that accepted the Asset Disposition Offer or an applicable offer for Later Debt in the amounts that would have been paid to them had all the offers and prepayments been completed at the same time with the same acceptances and rejections being made by all applicable holders of Subject Debt. The Asset Disposition Offer must remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Borrower will prepay the principal amount of Loans and purchase or prepay the principal amount of Subject Debt required to be purchased or prepaid pursuant to the Asset Disposition Offer (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Loans and Subject Debt validly tendered in response to the Asset Disposition Offer; provided, that such purchase may be deferred if and for so long as the prepayment of Loans and Subject Debt would be prohibited under the US First Lien Credit Agreement (and the Borrower agrees that during the period of any such deferral, the aggregate Net Available amount of cash and Cash from all Asset Dispositions which is Equivalents held by the Borrower and its Subsidiaries shall not applied in accordance with this Section 4.06(a) exceeds exceed $10.0 million25,000,000). Pending application Each prepayment of Net Available Cash Borrowings pursuant to this Section 4.06(a), such Net Available Cash 9.06 shall be invested applied ratably to the Loans included in Temporary Cash Investments the prepaid Borrowings. Prepayments shall be accompanied by accrued interest to the extent required by Section 3.02. On or applied before the Asset Disposition Purchase Date, the Borrower must, to temporarily reduce revolving credit indebtednessthe extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Loans and Subject Debt or portions of Loans and Subject Debt so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Loans and Subject Debt so validly tendered and not properly withdrawn. The Borrower shall make each prepayment under this Section 9.06 in accordance with Section 4.01 and shall in addition take any and all other actions required by the agreements governing any Subject Debt that is being prepaid. The Borrower will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date. For the purposes of this Section 4.06(a)9.06, the following are will be deemed to be cash or cash equivalents: cash:
(1i) the assumption by the transferee of Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the Company Borrower or Indebtedness of a Wholly-Owned Subsidiary (other than Guarantor Subordinated Obligations or Disqualified Stock of any Restricted Wholly-Owned Subsidiary that is a Subsidiary Guarantor) and the release of the Company Borrower or such the Restricted Subsidiary from all liability on such Indebtedness in connection with such the Asset Disposition and Disposition; and
(2ii) securities securities, notes or other obligations received by the Company Borrower or any Restricted Subsidiary from the transferee that are promptly converted by the Company Borrower or such Restricted Subsidiary into cash.cash within 60 days after consummation of the Asset Disposition. The Borrower will not, and will not permit any Restricted Subsidiary to, engage in any Asset Swaps, unless:
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer"i) at a purchase price the time of 100% of their principal amount (or, in entering into the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (Asset Swap and any other Senior Subordinated Indebtedness of the Company) tendered pursuant immediately after giving effect to the Offer exceeds the Net Available Cash allotted to their purchaseAsset Swap, the Company no Default or Event of Default shall select the Securities have occurred and other Senior Subordinated Indebtedness to be purchased on continuing or would occur as a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples consequence thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).;
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(bii) in the event the Offer is oversubscribed) Asset Swap involves the transfer by the Borrower or any Restricted Subsidiary of assets having an aggregate fair market value, as determined by the Board of Directors of the Borrower in integral multiples good faith, in excess of $1,000 of principal amount10,000,000, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to the Asset Swap have been accepted for purchase at approved by a majority of the time members of the TrusteeBoard of Directors of the Borrower; and
(iii) in the event the Asset Swap involves the transfer by the Borrower or any Restricted Subsidiary of assets having an aggregate fair market value, directly or through as determined by the Board of Directors of the Borrower in good faith, in excess of $25,000,000, the Borrower has received a written opinion from an agent, mails or delivers payment therefor independent investment banking firm of nationally recognized standing that the Asset Swap is fair to the surrendering HolderBorrower or the Restricted Subsidiary, as the case may be, from a financial point of view.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.
Appears in 3 contracts
Samples: Second Lien Credit Agreement (Quicksilver Resources Inc), Second Lien Credit Agreement (Quicksilver Resources Inc), Second Lien Credit Agreement (Quicksilver Resources Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless unless:
(1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, ) of the shares and assets subject to such Asset Disposition; and
(2ii) at least 8075% of the consideration thereof received by the Company or such Restricted Subsidiary is in 57the form of cash or Temporary Cash Investments. Within 365 days after the receipt of any Net Available Cash from such Asset Disposition (or, in the case of a Designated Foreign Asset Disposition, within the time period specified in the definition thereof), the Company or the applicable Restricted Subsidiary, as the case may be, shall apply the Net Available Cash from such Asset Disposition:
(aA) to reduce the outstanding principal amount of Credit Facility Indebtedness;
(B) to reduce the outstanding principal amount of any other Senior Indebtedness of the Company or a Subsidiary Guarantor; provided, however, that to the extent the Company or such Subsidiary Guarantor repays any such other Senior Indebtedness, the Company shall equally and ratably reduce the principal amount of Securities outstanding, through open-market purchases or through redemption, or shall offer (in accordance with the procedures set forth in Section 4.06(b)) to all Holders to purchase their Securities at 100% of the principal amount thereof, plus accrued but unpaid interest, if any, in an aggregate principal amount which, if the offer were accepted, would result in such reduction;
(C) to reduce the outstanding principal amount of Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor;
(D) to acquire Additional Assets; or
(E) to make capital expenditures that are used or useful in a Related Business, in the case of clauses (A), (B), and (C) other than Indebtedness owed to the Company or an Affiliate of the Company. Notwithstanding the foregoing provisions of this Section 4.06, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 4.06 except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) 4.06 exceeds $10.0 million10,000,000. Pending application of Net Available Cash pursuant to this Section 4.06(a)4.06, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cashIndebtedness.
(b) In Any Net Available Cash that is not applied or invested as provided in Section 4.06(a) shall constitute “Excess Proceeds.” When the event aggregate amount of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C)Excess Proceeds exceeds $50,000,000, the Company shall purchase Securities tendered pursuant to make an offer by the Company for (an “Asset Disposition Offer”) to all Holders of the Securities (and, at the Company’s election, to holders of other Senior Indebtedness to purchase or redeem the maximum principal amount of Securities and such other Senior Subordinated Indebtedness that may be purchased out of the Company) (the "Offer") at a purchase amount of such Excess Proceeds. The offer price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, any Asset Disposition Offer shall be equal to 100% of the accreted value thereof), without premium, principal amount of the Securities and/or any such Senior Indebtedness plus accrued but and unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser priceand Additional Interest, if any, as may to the date of purchase, and shall be provided for by the terms of such Senior Subordinated Indebtedness of the Company) payable in cash in accordance with the procedures (including prorating in the event of over-subscriptionoversubscription) set forth in Section 4.06(c)this Indenture or the agreements governing the other Senior Indebtedness. If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Trustee shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which which, in the case of the Securities will Securities, shall be denominations of $1,000 2,000 principal amount or integral multiples of $1,000 in excess thereof. The Upon completion of each Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero and, so long as all Securities validly tendered and not withdrawn pursuant to such offer are purchased by the Company shall not be required to make an Offer in compliance with this Section 4.06, any excess of the offer amount over the amount applied to purchase Securities (and such other Senior Subordinated Indebtedness of the CompanyIndebtedness) pursuant to such offer may be applied by the Company for any purpose not prohibited by this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition)Indenture.
(1c) (i) Promptly, and in any event within 10 days after the Company becomes obligated to make an Asset Disposition Offer, the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Asset Disposition Offer is oversubscribed) in integral multiples of $1,000 2,000 of principal amountamount or any whole integral multiple of $1,000 in excess thereof, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "“Purchase Date"”) and shall contain such information concerning the business of the Company which the Company in good faith believes will shall enable such Holders to make an informed decision (which at a minimum will shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's ’s business subsequent to the date of the latest of such Reportsreports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Asset Disposition Offer, together with the information contained address referred to in clause (3)iii) below.
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.
Appears in 2 contracts
Samples: Indenture (NCR Corp), Indenture (NCR Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of DirectorsFair Market Value, of the shares and assets subject to such Asset Disposition; ;
(2) at least 80% of the consideration thereof received by the Company or such Restricted Subsidiary is in 57the form of cash or Temporary Cash Investments; and
(a3) except unless otherwise consented to in writing by the extent that Holders of at least 66⅔% in principal amount of the aggregate Notes then outstanding, an amount equal to 100% of the Net Available Cash from all such Asset Dispositions which Disposition is not applied by the Company (or such Subsidiary, as the case may be) to redeem Notes in accordance with this Article III; provided, that the Company shall provide the notice of redemption specified in Section 4.06(a) exceeds $10.0 million. Pending application 3.01 with respect to such redemption within five Business Days of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash Asset Disposition and shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtednesscomplete such redemption within sixty days of such Asset Disposition. For the purposes of this Section 4.06(a)4.06, the following are deemed to be cash or cash equivalents: Temporary Cash Investments:
(1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and Disposition; and
(2) securities securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are promptly to the extent converted within 90 days by the Company or such Restricted Subsidiary into cash.
(b) In cash or Temporary Cash Investments. Notwithstanding the event foregoing provisions of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C)this covenant, the Company shall purchase Securities tendered pursuant to an offer by and the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities Subsidiaries will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the apply any Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required in accordance with respect to this covenant until the aggregate Net Available Cash from any subsequent all Asset Disposition).
(1) PromptlyDispositions that has not been applied in accordance with this covenant exceeds $1,500,000, and in any event within 10 days after at which time the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of must apply all such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and in accordance with this covenant; provided, that all Net Available Cash not so applied shall be (Ca) the compliance of such allocation with the provisions of Section 4.06(a) and maintained in a segregated deposit account or (b). On such date, the Company shall also irrevocably deposit with the Trustee or with ) maintained in a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate segregated securities account and hold in trust) invested in Temporary Cash Investments, maturing on the last day prior in each case, subject to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment a perfected first-priority security interest in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration favor of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for Collateral Agent pending application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulationscovenant.
Appears in 2 contracts
Samples: Indenture (Wolverine Tube Inc), Indenture (Wt Holding Company, Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall notIn addition to any mandatory repayments required pursuant to Section 3.01, in the event and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; (2) at least 80% of the consideration thereof received by the Company or such Restricted Subsidiary is in 57
(a) except to the extent that the aggregate Net Available Cash received by the Borrower or any of its Restricted Subsidiaries from all one or more Asset Dispositions which is not applied occurring on or after the Issue Date in accordance with this Section 4.06(aany period of 12 consecutive months ended after the Closing Date exceeds 10% of Adjusted Consolidated Assets as of the beginning of such 12-month period, then the Borrower shall (i) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a), within 12 months after the date such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or so received exceeds such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 10010% of their principal amount Adjusted Consolidated Assets and to the extent the Borrower elects (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for or is required by the terms of any Indebtedness) (A) apply an amount equal to or less than such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the excess Net Available Cash allotted to their purchase, the Company shall select the Securities permanently repay (and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of any repayment of revolving loans or similar obligations, to permanently reduce the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other correlating commitments) Senior Subordinated Indebtedness of the CompanyBorrower or (B) pursuant invest an amount, equal to this Section 4.06 if or less than the difference between such excess Net Available Cash available therefor is less than $10.0 million and the amount so applied pursuant to clause (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect A) (or enter into a definitive agreement committing to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event so invest within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days 12 months after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reportsagreement), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, Additional Assets and (Cii) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, apply an amount equal to the Offer Amount difference between such excess Net Available Cash and the amount applied pursuant to clause (i) as provided in the following paragraphs of this Section 7.06. The amount of such excess Net Available Cash required to be held for payment in accordance with the provisions applied pursuant to clause (ii) of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration shall constitute "Excess Proceeds."
(b) If, as of the period for which first day of any calendar month, the Offer remains open aggregate amount of Excess Proceeds totals at least $5 million, the Borrower must, not later than the fifteenth Business Day of such month, apply an amount equal to such Excess Proceeds to prepay principal of outstanding Loans (the "Offer PeriodExcess Proceeds Repayment"), the Company shall deliver . Each repayment pursuant to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to preceding sentence shall be accepted accompanied by the Company. The Trustee shall, payment of all accrued but unpaid interest on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrenderedLoans so repaid.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.
Appears in 2 contracts
Samples: Term Loan Agreement (Sullivan Graphics Inc), Term Loan Agreement (Acg Holdings Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at (both cash and non cash) equal to not less than the time Fair Market Value (such Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, Disposition) of the shares and assets subject to such Asset Disposition; ;
(2) at least 8075% of the consideration thereof from such Asset Disposition received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in 57the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:
(a) except to any liabilities (as shown on the extent that face of the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(aCompany’s or such Restricted Subsidiary’s then most recent balance sheet), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the release transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and further liability;
(2b) securities any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from the such transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness) to prepay, repay or purchase Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or any Restricted Subsidiary, as the case may be, elects, to invest in Replacement Assets within the applicable Application Period; and
(b) In second, to the event extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and or such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser priceearlier date, if any, as may the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be provided for applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (an “Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Subordinated Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) to purchase the maximum principal amount of such Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Company) Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If herein or the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of agreements governing the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchasePari Passu Notes, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominationsas applicable, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, at in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of such Notes and Pari Passu Notes validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the portions of such Excess Proceeds to be applied to purchase such tendered Notes and Pari Passu Notes shall be determined by the Company on a pro rata basis on the basis of the aggregate principal amount of such tendered Notes and Pari Passu Notes (subject to such adjustments as the Company in its sole discretion shall deem appropriate so that Notes are purchased in integral multiples of $1,000 in principal amount and the unpurchased portion of any Note shall not be less than $2,000 in principal amount and so that, in the case of Pari Passu Notes issued in authorized denominations, such Pari Passu Notes are purchased only in authorized denominations and the unrepurchased portion of any such Pari Passu Note shall also be an authorized denomination) and in such case the specific Notes to be purchased shall be selected, in the case of Global Notes, in accordance with the applicable procedures of the Depository (and, if permitted under such procedures, on a pro rata basis on the basis the aggregate principal amount of such Notes) and, in the case of Notes that are not Global Notes, by the Trustee on a pro rata basis on the basis of the aggregate principal amount of such Notes (and in each case subject to such adjustments as shall be necessary so that Notes are purchased in integral multiples of $1,000 in principal amount and the unrepurchased portion of any Note shall not be less than $2,000 in principal amount), and the selection of the specific Pari Passu Notes to be purchased shall be made pursuant to the terms of such Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase pricethe principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.15 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. Upon the commencement of an Asset Disposition Offer, the Company shall send, by first class mail, a notice to the Trustee and to each Holder at its registered address. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to enable such Holder to tender Securities Notes pursuant to the Asset Disposition Offer. Any Asset Disposition Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Disposition Offer, together with shall state:
(1) that the information contained in clause (3).Asset Disposition Offer is being made pursuant to this Section 4.15;
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Disposition Offer Amount to be held for payment in accordance with and the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Asset Disposition Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Security Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the SecurityNote, with an appro- priate the form duly entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three Business Days prior to days before the Asset Disposition Purchase Date. ;
(7) that Holders shall be entitled to withdraw their election if the Trustee Company, the Depository or the Company receives Paying Agent, as the case may be, receives, not later than one Business Day the second business day prior to the Asset Disposition Purchase Date, a telex, facsimile transmission or letter notice setting forth the name of the Holder, the principal amount of the Security which was Note the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security Note purchased. ;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) that Holders whose Securities are Notes were purchased only in part shall be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities surrendered.Notes surrendered (or transferred by book-entry transfer); and
(410) At all other procedures, if any, determined by the time Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Company delivers Securities will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of such Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Notes so validly tendered and not properly withdrawn, in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' ’ Certificate stating that such Securities are to be Notes or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this SectionSection 4.15 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. A Security The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after termination of the Asset Disposition Offer Period) mail or deliver to each tendering Holder of Notes or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Notes or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Note not so accepted will be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have been accepted sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purchase at purposes of this Section 4.15, and shall comply with the time provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Trustee, directly Fair Market Value of such properties and assets of the Company or through an agent, mails or delivers payment therefor its Restricted Subsidiaries deemed to the surrendering Holder.
(d) be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company shall will comply, to the extent applicable, with the requirements of Section Rule 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this SectionSection 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 4.15, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulationsany conflict.
Appears in 2 contracts
Samples: Indenture (Davita Healthcare Partners Inc.), Indenture (Physicians Choice Dialysis, LLC)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless unless:
(1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, ) of the shares and assets subject to such Asset Disposition; and
(2ii) at least 8075% of the consideration thereof received by the Company or such Restricted Subsidiary is in 57the form of cash or Temporary Cash Investments. Within 450 days after the receipt of any Net Available Cash from such Asset Disposition (or, in the case of a Designated Foreign Asset Disposition, within the time period specified in the definition thereof), the Company or the applicable Restricted Subsidiary, as the case may be, shall apply the Net Available Cash from such Asset Disposition:
(aA) to reduce the outstanding principal amount of Credit Facility Indebtedness;
(B) to reduce the outstanding principal amount of any other Senior Indebtedness of the Company or a Subsidiary Guarantor; provided, however, that to the extent the Company or such Subsidiary Guarantor repays any such other Senior Indebtedness, the Company shall equally and ratably reduce the principal amount of Securities outstanding, through open-market purchases or through redemption, or shall offer (in accordance with the procedures set forth in Section 4.06(b)) to all Holders to purchase their Securities at 100% of the principal amount thereof, plus accrued but unpaid interest, if any, in an aggregate principal amount which, if the offer were accepted, would result in such reduction;
(C) to reduce the outstanding principal amount of Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor;
(D) to acquire Additional Assets; or
(E) to make capital expenditures that are used or useful in a Related Business, in the case of clauses (A), (B), and (C) other than Indebtedness owed to the Company or an Affiliate of the Company; provided that entering into and not abandoning or rejecting a binding commitment to acquire assets or property or make capital expenditures to satisfy clause (D) or (E) shall be treated as a permitted application of Net Available Cash from the date of such commitment; provided further, that (x) such acquisition or capital expenditure is consummated within 545 days after the later of the receipt of such Net Available Cash or the date of such Asset Disposition and (y) if such acquisition or capital expenditure is not consummated within the period set forth in subclause (x), the Net Available Cash not so applied will be deemed to constitute Excess Proceeds under Section 4.06(b). Notwithstanding the foregoing provisions of this Section 4.06, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 4.06 except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) 4.06 exceeds $10.0 million50,000,000. Pending application of Net Available Cash pursuant to this Section 4.06(a)4.06, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cashIndebtedness.
(b) In Any Net Available Cash that is not applied or invested as provided in Section 4.06(a) shall constitute “Excess Proceeds.” When the event aggregate amount of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C)Excess Proceeds exceeds $75,000,000, the Company shall purchase Securities tendered pursuant to make an offer by the Company for (an “Asset Disposition Offer”) to all Holders of the Securities (and, at the Company’s election, to holders of other Senior Indebtedness to purchase or redeem the maximum principal amount of Securities and such other Senior Subordinated Indebtedness that may be purchased out of the Company) (the "Offer") at a purchase amount of such Excess Proceeds. The offer price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, any Asset Disposition Offer shall be equal to 100% of the accreted value thereof), without premium, principal amount of the Securities and/or any such Senior Indebtedness plus accrued but and unpaid interest (orto the date of purchase, and shall be payable in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) cash in accordance with the procedures (including prorating in the event of over-subscriptionoversubscription) set forth in Section 4.06(c)this Indenture or the agreements governing the other Senior Indebtedness. If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Trustee shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which which, in the case of the Securities will Securities, shall be denominations of $1,000 2,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.excess
Appears in 2 contracts
Samples: Indenture (NCR Corp), Indenture (NCR Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall notNeither the Parent nor the Issuer shall, and the Issuer shall not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, consummate any an Asset Disposition unless (other than with respect to a Rig (together with any related machinery and equipment required to operate the Rig that is subject to the the same Asset Disposition), which dispositions are governed by Section 4.11(g)), unless:
(1) the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, Fair Market Value of the shares and assets subject sold or otherwise disposed of (measured as of the date of the definitive agreement with respect to such Asset Disposition); and
(2) at least 8075% of the consideration thereof therefor received by the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be (which, for purposes of this clause (2), consideration will not include any contingent payment obligations related to such Asset Disposition, including, earn-out payments, purchase price adjustments and deferred purchase price payments), is in 57the form of cash or Cash Equivalents; provided that the amount of:
(aA) except any liabilities, as shown on the Issuer’s or such Subsidiary’s most recent balance sheet or in the notes thereto, of the Issuer or any of its Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) (i) that are assumed by the transferee of any such assets and from which the Issuer or such Subsidiary has been validly released by all creditors in writing, or (ii) in respect of which neither the Issuer nor any Subsidiary following such Asset Disposition has any obligation;
(B) any securities or other obligations received by the Issuer or such Subsidiary from such transferee that are converted by the Issuer or such Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Disposition;
(C) any Capital Stock, properties or assets of the kind referred to in Section 4.11(b)(1);
(D) cash held in escrow as security for any purchase price settlement, for damages in respect of a breach of representations and warranties or covenants or for payment of other contingent obligations in connection with such Asset Disposition; and
(E) any Designated Noncash Consideration received by the Issuer or any Subsidiary in such Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed $10.0 million at the time of the receipt of such Designated Noncash Consideration, with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value, in each case, shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) Within 365 days after the receipt of any Net Cash Proceeds of any Asset Disposition (other than with respect to a Rig, which is governed by Sections 3.09, 4.08, 4.11(g) and 4.19), the Issuer or such Subsidiary, at its option, may apply the Net Cash Proceeds from such Asset Disposition to one or more of the following, or any combination,
(1) to make (A) an Investment in any one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock of a Subsidiary or results in the Issuer or its Subsidiaries owning an amount of the Capital Stock of such business such that it constitutes a Subsidiary, (B) capital expenditures in respect of the Issuer, its Subsidiaries or their respective assets or (C) acquisitions of other properties or assets to be held by the Issuer or its Subsidiaries (including assets that replace the business, properties and assets of the Issuer or any of its Subsidiaries that were the subject of such Asset Disposition), in the case of each of (A), (B) and (C), used or useful in a Related Business; or
(2) to reduce or repay Obligations under the Notes in accordance with the provision set forth under Section 3.07, through open market purchases of the Notes or through an offer to purchase Notes (in accordance with the procedures set forth below for an Asset Disposition Offer); provided, that all Net Cash Proceeds used to make such an offer to purchase shall be deemed to have been so applied whether or not accepted by the Holders; provided that a binding commitment to apply Net Cash Proceeds as set forth in Section 4.11(b)(1) shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment so long as the Issuer or such Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 180 days of the end of such 365-day period (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Cash Proceeds are applied in connection therewith, then the Issuer or such Subsidiary shall be permitted to apply the Net Cash Proceeds in any manner set forth above before the expiration of such 180- day period and, in the event the Issuer or such Subsidiary fails to do so, then such Net Cash Proceeds shall constitute Excess Proceeds (as defined below).
(c) Any Net Cash Proceeds from an Asset Disposition that are not invested or applied as provided and within the time period set forth in Section 4.11(b) will be deemed to constitute “Excess Proceeds”. The Issuer shall make an offer to all Holders of the Notes (an “Asset Disposition Offer”) with the proceeds of sales of assets to purchase, prepay or redeem the maximum aggregate principal amount of the Notes (equal to $2,000 or integral multiples of $1,000 in excess thereof), that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest to, but not including, the date fixed for the closing of such offer (subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date), in accordance with the procedures set forth in this Indenture. The Issuer shall commence an Asset Disposition Offer with respect to Excess Proceeds within 30 days after the date that Excess Proceeds exceed $10.0 million by delivering the notice required pursuant to Section 3.10, with a copy to the Trustee. The Issuer may, at its election, satisfy the foregoing obligations with respect to any Net Cash Proceeds from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Cash Proceeds prior to the expiration of the relevant 365-day period (or such longer period provided above).
(d) To the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application amount of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities Notes tendered pursuant to an offer Asset Disposition Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for any purpose not prohibited by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c)this Indenture. If the aggregate purchase price principal amount of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer Notes surrendered by such holders thereof exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Trustee shall select the Securities and other Senior Subordinated Indebtedness Notes to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and sendbasis, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased lot or by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment methods in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration applicable procedures of the period for which the Offer remains open (the "Offer Period")Depositary, the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, based on the Purchase Date, mail accreted value or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement Notes tendered (with adjustments as necessary so that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only no Notes will be repurchased in part in an unauthorized denomination). Upon completion of any such Asset Disposition Offer, the amount of Excess Proceeds that resulted in the Asset Disposition Offer shall be issued new Securities equal in principal amount reset to the unpurchased portion of the Securities surrenderedzero.
(4e) At Pending the time the Company delivers Securities to the Trustee which are to be accepted for purchasefinal application of any Excess Proceeds, the Company shall also deliver an Officers' Certificate stating Issuer (or the applicable Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Excess Proceeds in any manner that such Securities are to be accepted is not prohibited by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering HolderIndenture.
(df) The Company Issuer shall comply, to the extent applicable, comply with the requirements of Section 14(e) of Rule 14e-l under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the purchase repurchase of Securities the Notes pursuant to this Sectionan Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this SectionIndenture, the Company Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under described in this Section Indenture by virtue thereof.
(g) Neither the Parent nor the Issuer shall, and the Issuer shall not permit any of its compliance Subsidiaries to, consummate an Asset Disposition (including the occurrence of a Total Loss) of a Rig unless (i) with respect to any such Asset Disposition that is not a Total Loss, the Rig Owner receives consideration at the time of such Asset Disposition at least equal to the Fair Market Value of the Rig, (ii) no more than one (1) prior Asset Disposition of a Rig owned by any of the Issuer, the Guarantors or any Subsidiary thereof has occurred (excluding any Asset Disposition consisting of a Total Loss of a Rig if the Issuer or one of its Subsidiaries acquires a Rig of at least substantially similar value as the Rig subject to such Total Loss (with such securities laws value determined immediately prior to giving effect to such Total Loss) and all of the Net Cash Proceeds of such Total Loss are maintained in a deposit account constituting Collateral until such Rig of at least substantially similar value is acquired), (iii) at least three (3) Rigs will continue to be owned by Rig Owners immediately after giving effect to such Asset Disposition; provided, that in the case of a Total Loss of a Rig following two Asset Dispositions of Rigs permitted pursuant to Section 4.11(g) (neither of which was a Total Loss), to the extent at least two (2) Rigs are then owned by the Issuer and its Subsidiaries in the aggregate without being subject to any Liens permitted pursuant to clause (6), (8) or regulations(9) of the definition of Permitted Liens, the Issuer and its Subsidiaries shall be deemed to have owned at least three (3) Rigs if, within 365 days following the Issuer’s receipt of all of the Net Cash Proceeds of such Total Loss, the Rig Owners own at least three (3) Rigs not subject to any Lien permitted pursuant to clause (6), (8) or (9) of the definition of Permitted Liens (provided further, that all such Net Cash Proceeds are maintained in a deposit account constituting Collateral until the Rig Owners own at least three (3) such Rigs), (iv) with respect to any Asset Disposition that is not a Total Loss, at least 75% of the consideration therefor received by the Issuer or any Subsidiary, as the case may be (which, for purposes of this clause (iv), consideration will not include any contingent payment obligations related to such Asset Disposition, including earn-out payments, purchase price adjustments and deferred purchase price payments, and cash held in escrow as security for any purchase price settlement, for damages in respect of a breach of representations and warranties or covenants or for payment of other contingent obligations in connection with such Asset Disposition shall be deemed to be Cash Equivalents for purposes of this clause (iv) and for no other purpose), is in the form of cash or Cash Equivalents, (v) with respect to any Asset Disposition that is not a Total Loss, no Default or Event of Default exists immediately before or immediately after giving effect to such Asset Disposition, (vi) the Net Cash Proceeds from any such Asset Disposition that is not a Total Loss are at least (a) $150.0 million, with respect to the NLN, or (b) $50.0 million, with respect to any other Rig, and (vii) the Net Cash Proceeds from such Asset Disposition are applied in accordance with Sections 3.09, 4.08 and 4.19 to the extent applicable.
Appears in 2 contracts
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall may not, and shall may not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such the Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such the Asset Disposition at least equal to the fair market value of the assets subject to the Asset Disposition (determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by senior management of the Company or, if the consideration with respect to such Asset Disposition exceeds $10 million, the Board of Directors of the Company (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; and
(2) at least 8075% of the consideration thereof from the Asset Disposition received by the Company or the Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. The Company or such Restricted Subsidiary, as the case may be, may elect to apply all or any portion of the Net Available Cash from such Asset Disposition either:
(1) to prepay, repay, purchase, repurchase, redeem, defease or otherwise acquire or retire Senior Indebtedness of the Company (other than Disqualified Stock or Subordinated Obligations) or Indebtedness of a Wholly-Owned Subsidiary (other than any Disqualified Stock or Guarantor Senior Subordinated Indebtedness or Guarantor Subordinated Obligation of a Wholly-Owned Subsidiary Guarantor) (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment, purchase, repurchase, redemption, defeasance, or acquisition of Indebtedness pursuant to this clause (1), the Company or such Restricted Subsidiary is will retire such Indebtedness and, in 57the case of revolving Indebtedness, will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so retired; or
(a2) to invest in Additional Assets or make Permitted Business Investments within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, that, pending the final application of any such Net Available Cash in accordance with clauses (1) or (2) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by the Indenture. Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in the preceding paragraph will be deemed to constitute “Excess Proceeds.” On the 366th day after an Asset Disposition, if the aggregate amount of Excess Proceeds exceeds $20 million, the Company must make an offer (“Asset Disposition Offer”) to all Holders of Notes and to the extent required by the terms of other Senior Subordinated Indebtedness, to all holders of other Senior Subordinated Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Subordinated Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”), to purchase the maximum principal amount of Notes and any Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in the Indenture or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in the Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof and other Pari Passu Notes surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and Pari Passu Notes to be purchased pro rata on the basis of the aggregate principal amount of tendered Notes and Pari Passu Notes. Upon completion of the Asset Disposition Offer, the amount of Excess Proceeds will be reset at zero. The Asset Disposition Offer must remain open for a period of 20 business days following its commencement, except to the extent that a longer period is required by applicable law (the aggregate Net Available Cash from all “Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 millionDisposition Offer Period”). Pending application No later than five Business Days after the termination of Net Available Cash the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.06(a)the Asset Disposition Offer (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after a Regular Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such Net Available Cash shall Record Date, and no additional interest will be invested payable to Holders who tender Notes pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Company must, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Notes so validly tendered and not properly withdrawn, in Temporary Cash Investments each case in integral multiples of $1,000. The Company or applied the Paying Agent, as the case may be, must promptly (but in any case not later than five business days after the termination of the Asset Disposition Offer Period) mail or deliver to temporarily reduce revolving credit indebtednesseach tendering Holder of Notes or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Notes or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company must promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, must authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount of $1,000 or an integral multiple of $1,000. In addition, the Company must take any and all other actions required by the agreements governing the Pari Passu Notes. Any Note not so accepted must be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date. For the purposes of this Section 4.06(a)3.07, the following are will be deemed to be cash or cash equivalents: cash:
(1) the assumption by the transferee of Indebtedness (other than Senior Subordinated Indebtedness, Subordinated Obligations or Disqualified Stock) of the Company or Indebtedness of a Wholly-Owned Subsidiary (other than Guarantor Senior Subordinated Indebtedness, Guarantor Subordinated Obligations or Disqualified Stock of any Restricted Wholly-Owned Subsidiary that is a Subsidiary Guarantor) and the release of the Company or such the Restricted Subsidiary from all liability on such Indebtedness in connection with such the Asset Disposition and Disposition; and
(2) securities securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness cash within 60 days after consummation of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereofAsset Disposition. The Company shall may not, and may not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from permit any subsequent Restricted Subsidiary to, engage in any Asset Disposition).Swaps, unless:
(1) Promptly, at the time of entering into the Asset Swap and in any event within 10 days immediately after the Company becomes obligated to make an Offer, the Company shall deliver giving effect to the Trustee Asset Swap, no Default or Event of Default shall have occurred and send, by first-class mail to each Holder, be continuing or would occur as a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part consequence thereof;
(subject to prorating as described in Section 4.06(b2) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at Asset Swap involves the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of transfer by the Company which or any Restricted Subsidiary of assets having an aggregate fair market value, as determined by the Board of Directors of the Company in good faith believes will enable such Holders to make an informed decision (which at faith, in excess of $10 million, the terms of the Asset Swap have been approved by a minimum will include (A) majority of the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) members of the Board of Directors of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.; and
(3) Holders electing to have in the event the Asset Swap involves the transfer by the Company or any Restricted Subsidiary of assets having an aggregate fair market value, as determined by the Board of Directors of the Company in good faith, in excess of $25 million, the Company has received a Security purchased shall be required to surrender written opinion from an independent investment banking firm of nationally recognized standing that the Security, with an appro- priate form duly completed, Asset Swap is fair to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to Restricted Subsidiary, as the Purchase Datecase may be, from a telex, facsimile transmission or letter setting forth the name financial point of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchasedview. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this Sectionthe Indenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 3.07, the Company shall will comply with the applicable securities laws and regulations and shall not will be deemed not to have breached its obligations under this Section the Indenture by virtue of its compliance with such securities laws or regulationscompliance.
Appears in 2 contracts
Samples: First Supplemental Indenture (Quicksilver Resources Inc), First Supplemental Indenture (Quicksilver Resources Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall Parent Guarantor will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company Parent Guarantor or such any of its Restricted Subsidiary Subsidiaries receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as such Fair Market Value to be determined on the value date of all non-cash consideration), as determined in good faith by the Board of Directors, contractually agreeing to such Asset Disposition) of the shares and Capital Stock or other assets subject to such Asset Disposition; ;
(2) except in the case of an Asset Swap, at least 8075% of the consideration thereof (determined on the date of contractually agreeing to such Asset Disposition) received by the Parent Guarantor or any of its Restricted Subsidiaries from such Asset Disposition and all other Asset Dispositions since the Issue Date, on a cumulative basis, is in the form of cash or Cash Equivalents, or any combination thereof; provided that any consideration other than cash or Cash Equivalents received by the Parent Guarantor or any of its Restricted Subsidiaries from such Asset Disposition shall only be permitted if it consists solely of the right to receive earnout payments, production payments, overrides or drilling participation arrangements or in seller notes (or a similar form of customary seller financing);
(3) except as provided in Section 3.5(b), an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied, within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, by the Parent Guarantor or such Restricted Subsidiary, as the case may be:
(A) to prepay, repay, redeem or purchase Indebtedness under the Senior Secured Credit Agreements;
(B) to prepay, repay, redeem or purchase Notes by, at its option, (x) redeeming Notes as provided under paragraph 5 of the form of Note set forth in Exhibit A, (y) purchasing Notes through open-market purchases or in privately negotiated transactions at market prices (which shall be at or above par) and/or (z) making an offer (in accordance with the provisions set forth in this Section 3.5 for an Asset Disposition Offer) to all Holders to purchase their Notes (which offer shall be deemed to be an Asset Disposition Offer for purposes hereof); or
(C) to invest in Additional Assets; provided that without limitation to the provisions described in Section 11.3, to the extent any Additional Assets received by the Company or such Restricted Subsidiary is in 57such Asset Sale consists of assets of a type that would constitute Collateral under the Note Security Documents, such Additional Assets, including Capital Stock of any Person that becomes a Restricted Subsidiary as a result of such transaction, are added to the Collateral within the time periods set forth in Section 11.3 or the applicable Note Security Documents; and
(a4) except without limitation to the provisions described in Section 11.3, to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2) securities consideration received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary in such Asset Sale consists of assets of a type that would constitute Collateral under the Note Security Documents, such assets, including assets of any Person that becomes a Guarantor as a result of such transaction, are added to the Collateral within the time periods set forth in Section 11.3 or the applicable Note Security Documents; provided that pending the final application of any such Net Available Cash in accordance with clauses (A), (B) or (C) above, the Parent Guarantor and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. The requirement of clause (C) above shall be deemed to be satisfied if an agreement (including a lease, whether a capital lease or an operating lease) committing to make the acquisitions or expenditures referred to therein is entered into cashby the Parent Guarantor or its Restricted Subsidiary within the specified time period and such Net Available Cash is subsequently applied in accordance with such agreement within six months following such agreement.
(b) In Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in Section 3.5(a)(3) will be deemed to constitute “Excess Proceeds.” Not later than the event 366th day from the later of an the date of such Asset Disposition that requires or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $5.0 million, the Issuer will be required to make an offer (“Asset Disposition Offer”) to all Holders (with a copy to the Trustee) to purchase of Securities (and other Senior Subordinated Indebtedness the maximum principal amount of the Company) pursuant to Section 4.06(a)(3)(C)Notes that may be purchased out of the Excess Proceeds, the Company shall purchase Securities tendered pursuant to at an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal in cash in an amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, equal to 100% of the accreted value thereof), without premium, principal amount of the Notes plus accrued but and unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser priceinterest, if any, as may be provided for by to, but excluding, the terms date of such Senior Subordinated Indebtedness purchase (subject to the right of Holders of record on the Company) relevant record date to receive interest due on the relevant interest payment date), in accordance with the procedures (including prorating in the event of over-subscription) set forth in this Section 4.06(c3.5 in integral multiples of $1.00 in excess of $2,000 (or in excess of $1.00 after a PIK Payment), provided that the unpurchased portion of each Note must be equal to a minimum principal amount of $2,000 or an integral multiple of $1.00 in excess of $2,000 (or in excess of $1.00 after a PIK Payment). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness principal amount of the Company) tendered pursuant to the Offer Notes surrendered by Holders thereof exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Issuer shall select the Securities and other Senior Subordinated Indebtedness Notes to be purchased on a pro rata basis but in round denominations, which in on the case basis of the Securities will be denominations of $1,000 aggregate principal amount or multiples thereofof tendered Notes. To the extent that the aggregate principal amount of the Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Parent Guarantor and its Restricted Subsidiaries may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(c) The Company shall not be Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of the Notes required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) be purchased pursuant to this Section 4.06 3.5 (the “Asset Disposition Offer Amount”) or, if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an the Asset Disposition Offer is required with respect Amount has been so validly tendered and not properly withdrawn, all Notes validly tendered and not properly withdrawn in response to the Net Available Cash from any subsequent Asset Disposition)Disposition Offer.
(1d) PromptlyIf the Asset Disposition Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and in any event within 10 days after no further interest will be payable to Holders who tender the Company becomes obligated Notes pursuant to make an the Asset Disposition Offer.
(e) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes or portions of Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Company shall deliver to the Trustee Asset Disposition Offer Amount has been validly tendered and sendnot properly withdrawn, by first-class mail to all Notes so validly tendered and not properly withdrawn, in each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) case in integral multiples of $1,000 1.00 in excess of $2,000 (or in excess of $1.00 after a PIK Payment), provided that the unpurchased portion of each Note must be equal to a minimum principal amount, at the applicable purchase priceamount of $2,000 or an integral multiple of $1.00 in excess of $2,000 (or minimum denominations of $1.00 and integral multiples of $1.00 in excess thereof after a PIK Payment). The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes Issuer will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' ’ Certificate stating that such Securities are to be Notes or portions thereof were accepted for payment by the Company pursuant to and Issuer in accordance with the terms of this SectionSection 3.5. A Security shall be deemed The Issuer or the paying agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Disposition Offer Period) mail or deliver to have been each tendering Holder of the Notes an amount equal to the purchase price of the Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Issuer for purchase at purchase, and the time Issuer will promptly issue a new Note, and the Trustee, directly upon delivery of an Issuer Order and Officers’ Certificate from the Issuer, will authenticate and mail or through deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a minimum principal amount of $2,000 or an agent, mails integral multiple of $1.00 in excess of $2,000 (or delivers payment therefor minimum denominations of $1.00 and integral multiples of $1.00 in excess thereof after a PIK Payment). Any Note not so accepted will be promptly mailed or delivered by the Issuer to the surrendering HolderHolder thereof. The Issuer will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date.
(df) The Company shall Issuer will comply, to the extent applicable, with the requirements of Section 14(e) Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities the Notes pursuant to this Sectionan Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 3.5, the Company shall Issuer will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulations.
(g) For the purposes of Section 3.5(a)(2), the following will be deemed to be cash:
(1) the assumption by the transferee of Indebtedness of the Parent Guarantor (other than Subordinated Obligations, Guarantor Subordinated Obligations or Disqualified Stock of the Parent Guarantor) or Indebtedness of a Restricted Subsidiary (other than Subordinated Obligations, Guarantor Subordinated Obligations of any Subsidiary Guarantor or Disqualified Stock of any Restricted Subsidiary) and the release of the Parent Guarantor or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition (in which case the Parent Guarantor will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with Section 3.5(a)(3);
(2) with respect to any Asset Disposition of Oil and Gas Properties by the Parent Guarantor or any of its Restricted Subsidiaries in which the Parent Guarantor or such Restricted Subsidiary still retains an interest, any agreement by the transferee (or any Affiliate thereof) to pay all or a portion of the costs and expenses related to the exploration, development, completion or production of such properties and activities related thereto; and
(3) securities, notes or other obligations received by the Parent Guarantor or any Restricted Subsidiary from the transferee that are converted by the Parent Guarantor or such Restricted Subsidiary into cash within 180 days after receipt thereof.
(h) The Parent Guarantor will not, and will not permit any Restricted Subsidiary to, engage in any Asset Swaps, unless:
(1) at the time of entering into such Asset Swap and immediately after giving effect to such Asset Swap, no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(2) in the event such Asset Swap involves the transfer by the Parent Guarantor or any Restricted Subsidiary of assets having an aggregate Fair Market Value in excess of $10.0 million, the terms of such Asset Swap have been approved by a majority of the members of the Board of Directors of the Parent Guarantor.
(i) Other than as specifically provided in this Section 3.5, any purchase pursuant to this Section 3.5 shall be made pursuant to the applicable provisions of Article V.
Appears in 2 contracts
Samples: Indenture (Ultra Petroleum Corp), Exchange Agreement (Ultra Petroleum Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value value, as determined in good faith by the Company's senior management or the Board of Directors (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; (2ii) at least 8075% of the consideration thereof received by the Company or such Restricted Subsidiary is in 57
the form of cash or cash equivalents; and (aiii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Subsidiary, as the case may be) (A) first, to the extent the Company or any Subsidiary elects (or is required by the terms of any Senior Indebtedness or Guarantor Senior Indebtedness), to prepay, repay or purchase (x) Senior Indebtedness or Guarantor Senior Indebtedness or (y) Indebtedness of a Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company) within 180 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; (B) second, within one year from the receipt of such Net Available Cash, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), at the Company's election either (x) to the investment in or acquisition of Additional Assets or (y) to prepay, repay or purchase (1) Senior Indebtedness or Guarantor Senior Indebtedness or (2) Indebtedness of a Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company); (C) third, within 45 days after the later of the application of Net Available Cash in accordance with clauses (A) and (B) and the date that is one year from the receipt of such Net Available Cash, to the extent of the balance of such Net Available Cash after application and in accordance with clauses (A) and (B), to make an offer to purchase 11 3/4% Senior Subordinated Notes at par plus accrued and unpaid interest, if any, thereon in accordance with the provisions of the 11 3/4% Senior Subordinated Indenture; (D) fourth, within 45 days of the later of the Application of Net Available Cash in accordance with clauses (A), (B) and (C) and the date that is one year from the receipt of such Net Available Cash, to the extent if the balance of such Net Available Cash after application and in accordance with clause (A), (B) and (C), to make an offer to purchase Securities at par plus accrued and unpaid interest, if any, thereon; and (E) fifth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B), (C) and (D), to (w) the investment in or acquisition of Additional Assets; (x) the making of Temporary Cash Investments, (y) the prepayment, repayment or purchase of Indebtedness of the Company or Indebtedness of any Subsidiary (other than Indebtedness owed to the Company) or (z) any other purpose otherwise permitted under this Indenture, in each case within the later of 45 days after the application of Net Available Cash in accordance with clauses (A), (B), (C) and (D) and the date that is one year from the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clauses (A), (B), (C), (D) or (E) above, the Company or such Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions, the Company and its Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is are not applied in accordance with this Section 4.06(a) exceeds covenant at any time exceed $10.0 million. Pending application of The Company shall not be required to make an offer for Securities pursuant to this covenant if the Net Available Cash pursuant to this Section 4.06(aavailable therefor (after application of the proceeds as provided in clauses (A), such (B) and (C)) is less than $10.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an offer is required with respect to the Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtednessfrom any subsequent Asset Disposition). For the purposes of this Section 4.06(a)covenant, the following are will be deemed to be cash or cash equivalentscash: (1x) the assumption by the transferee of Senior Indebtedness of the Company or Indebtedness of any Restricted Subsidiary of the Company and the release of the Company or such Restricted Subsidiary from all liability on such Senior Indebtedness or Indebtedness in connection with such Asset Disposition (in which case the Company shall, without further action, be deemed to have applied cash to repay such assumed Indebtedness in accordance with clause (A) of the preceding paragraph) and (2y) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C4.6(a)(iii)(D), the Company shall will be required to purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but and unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser priceinterest, if any, as may be provided for by to the terms of such Senior Subordinated Indebtedness of the Company) purchase date in accordance with the procedures (including prorating in the event of over-subscriptionoversubscription) set forth in Section 4.06(c4.6(c). If the aggregate purchase price of the Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds is less than the Net Available Cash allotted to their purchasethe purchase of the Securities, the Company shall select will apply the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the remaining Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required in accordance with respect to the Net Available Cash from any subsequent Asset DispositionSection 4.6(a)(iii)(E).
(1) Promptly, and in any event within 10 days after the Company becomes obligated is required to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as hereinafter described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).. 62
(2) Not later than the date upon which such written notice of an Offer is delivered to the Trustee as provided belowand the Holders, the Company shall deliver to the Trustee an Officers' Certificate as to setting forth (Ai) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (Bii) the allocation of the Net Available Cash from the Asset Dispositions pursuant to as a result of which such Offer is being made and (Ciii) the compliance of such allocation with the provisions of Section 4.06(a) and (b4.6(a). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period")) for which the Offer remains open, the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered tendered by the Company such Holder to the Trustee is less than the Offer Amount applicable extent such funds are available to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06Trustee.
(3) Holders electing to have a Security purchased shall will be required to surrender the Security, with an appro- priate appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Dateexpiration of the Offer Period. Holders shall Each Holder will be entitled to withdraw their its election if the Trustee or the Company receives receives, not later than one Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter from such Holder setting forth the name of the such Holder, the principal amount of the Security or Securities which was were delivered for purchase by the such Holder and a statement that such Holder is withdrawing his election to have such Security or Securities purchased. If at the expiration of the Offer Period the aggregate principal amount of Securities surrendered by Holders exceeds the Offer Amount, the Company shall select the Securities to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Securities in denominations of $1,000, or integral multiples thereof, shall be purchased). Holders whose Securities are purchased only in part shall will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities pursuant to this SectionSection 4.6. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 4.6, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulationsthereof.
Appears in 2 contracts
Samples: Indenture (Wire Harness Industries Inc), Indenture (International Wire Group Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate any Asset Disposition unless unless:
(1) the Company or such a Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including measured as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject date of the definitive agreement with respect to such Asset Disposition; ), of the assets and Equity Interests issued or sold pursuant to such Asset Disposition;
(2) at least 8075% of the aggregate consideration thereof received by the Company or such its Restricted Subsidiary Subsidiaries in the Asset Disposition and all other Asset Dispositions since the Issue Date is in 57the form of cash or Temporary Cash Investments, Additional Assets or any combination thereof (collectively, the “Cash Consideration”); provided that each of the following will be deemed to be cash:
(a) except to any liabilities, as shown on the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a)Company’s most recent consolidated balance sheet, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the release Securities or any Subsidiary Guarantee) that are assumed, forgiven or otherwise extinguished by the transferee by written agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(b) with respect to any Asset Disposition of Oil and Gas Properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary from all liability on related to the exploration, development, completion or production of such Indebtedness in connection with such Asset Disposition properties and activities related thereto which the transferee (2or an Affiliate thereof) securities agrees to pay;
(c) any securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are promptly are, within 180 days of the Asset Disposition, converted by the Company or such Restricted Subsidiary into cash., to the extent of the cash received in that conversion; and
(d) any Designated Non-Cash Consideration received by the Company or such Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (d), not to exceed an amount equal to 7.5% of the Company’s ACNTA (determined at the time of receipt of such Designated Non-Cash Consideration), with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or a Restricted Subsidiary, as the case may be) within 365 days to:
(a) prepay, repay, redeem or purchase any Senior Debt;
(b) In acquire Additional Assets; or
(c) make capital expenditures in a Permitted Business. The requirement of clauses (3)(b) and (3)(c) of the event preceding paragraph of an Asset Disposition that requires this Section 3.5 shall be deemed to be satisfied if a bona fide binding contract committing to make the purchase of Securities investment, acquisition or expenditure referred to therein is entered into by the Company (and other Senior Subordinated Indebtedness or any Restricted Subsidiary of the Company) with a Person other than a Restricted Subsidiary of the Company within the time period specified in the preceding paragraph and such Net Available Cash is subsequently applied in accordance with such contract within six months following the date such agreement is entered into. Pending application of Net Available Cash pursuant to this Section 4.06(a)(3)(C)3.5, the Company or any Restricted Subsidiary of the Company may apply the Net Available Cash to temporarily reducing Indebtedness under any Credit Facility or otherwise invest the Net Available Cash in any manner that is not prohibited by this Indenture. The amount of Net Available Cash not applied or invested as provided above will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds equals or exceeds $50.0 million, the Company shall make an offer to purchase Securities and other Pari Passu Indebtedness of the Company (an “Asset Disposition Offer”) within 30 days, and shall purchase Securities tendered pursuant to an offer Offer by the Company for the Securities (and such other Senior Subordinated Pari Passu Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest to, but not including, the date of purchase, subject to the right of Holders of record on the relevant record date to receive interest on the relevant interest payment date (or, in respect of such other Senior Subordinated IndebtednessPari Passu Indebtedness of the Company, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Pari Passu Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscriptionoversubscription) set forth below in this Section 4.06(c3.5. Upon completion of an Asset Disposition Offer, Excess Proceeds will be deemed to be reset to zero. The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Securities and Pari Passu Indebtedness required to be purchased pursuant to this Section 3.5 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered and not properly withdrawn, all Securities and Pari Passu Indebtedness validly tendered and not properly withdrawn in response to the Asset Disposition Offer. If the aggregate purchase price Asset Disposition Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, will be paid to the Person in whose name a Security is registered at the close of business on such record date, and no further interest will be payable to Holders who tender Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds Asset Disposition Offer. On or before the Net Available Cash allotted to their purchaseAsset Disposition Purchase Date, the Company shall select will, to the Securities and other Senior Subordinated Indebtedness extent lawful, accept for payment, to be purchased the extent necessary on a pro rata basis but (except that any Securities represented by a Security in round denominations, which in the case of the Securities global form will be denominations selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection, unless otherwise required by law), the Asset Disposition Offer Amount of Securities and Pari Passu Indebtedness or portions of Securities and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Securities and Pari Passu Indebtedness so validly tendered and not properly withdrawn, in each case in minimum principal amount of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (2,000 and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 in excess of $2,000; provided that if, following the repurchase of a portion of a Security, the remaining principal amountamount of such Security outstanding immediately after such repurchase would be less than $2,000, at then the applicable purchase priceportion of such Security so repurchased shall be reduced such that the remaining principal amount of such Security outstanding immediately after such repurchase is $2,000. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' ’ Certificate stating that such Securities are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this SectionSection 3.5 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Indebtedness. A Security shall be deemed The Company or the paying agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Disposition Offer Period) mail (or otherwise deliver in accordance with the applicable procedures of DTC) to have been each tendering Holder of Securities or holder or lender of Pari Passu Indebtedness, as the case may be, an amount equal to the purchase price of the Securities or Pari Passu Indebtedness so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase at purchase, and the time Company will promptly issue a new Security, and the Trustee, directly upon delivery of an authentication order from the Company, will authenticate and mail or through deliver such new Security to such Holder, in a principal amount equal to any unpurchased portion of the Security surrendered; provided that each such new Security will be in a minimum principal amount of $2,000 or an agentintegral multiple of $1,000 in excess of $2,000. In addition, mails the Company will take any and all other actions required by the agreements governing the Pari Passu Indebtedness. Any Security not so accepted will be promptly mailed or delivers payment therefor delivered by the Company to the surrendering Holder.
(d) Holder thereof. The Company shall will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date. The Company will comply, to the extent applicable, with the requirements of Section 14(e) Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities pursuant to this Sectionan Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 3.5, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulations.
Appears in 2 contracts
Samples: Indenture (CNX Resources Corp), Indenture (CNX Resources Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as such Fair Market Value to be determined on the value date of all non-cash consideration), as determined in good faith by the Board of Directors, contractually agreeing to such Asset Disposition) of the shares and or other assets subject to such Asset Disposition; and
(2) at least 8075% of the aggregate consideration thereof received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, from such Asset Disposition and all other Asset Dispositions since the 2019 Notes Issue Date, on a cumulative basis, is in 57the form of cash or Cash Equivalents or Additional Assets, or any combination thereof.
(ab) The Net Available Cash from such Asset Disposition may be applied, within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, by the Company or such Restricted Subsidiary, as the case may be:
(1) to prepay, repay, redeem or purchase Pari Passu Indebtedness of the Company (including the Notes) or a Subsidiary Guarantor or any Indebtedness (other than Disqualified Stock) of a Restricted Subsidiary that is not a Subsidiary Guarantor (in each case, excluding Indebtedness owed to the Company or an Affiliate of the Company); provided, however, that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this Section 5.11(b)(1), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; or
(2) to make capital expenditures in the Oil and Gas Business or to invest in Additional Assets; provided, that pending the final application of any such Net Available Cash in accordance with clause (1) or clause (2) of this Section 5.11(b), the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(c) Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in Section 5.11(b) will be deemed to constitute “Excess Proceeds.” Not later than the 366th day from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Pari Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount (or, in the event such Pari Passu Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof) of the Notes and Pari Passu Notes plus accrued and unpaid interest, if any (or in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Indebtedness), to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Notes, as applicable, in each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000. If the aggregate principal amount of Notes surrendered by Holders thereof and other Pari Passu Notes surrendered by Holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Notes. To the extent that the aggregate principal amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to the Articles Five and Six of this Indenture. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(d) The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the aggregate Net Available Cash from all “Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 millionDisposition Offer Period”). Pending application No later than five Business Days after the termination of Net Available Cash the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.06(a)5.11 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered and not properly withdrawn, all Notes and Pari Passu Notes validly tendered and not properly withdrawn in response to the Asset Disposition Offer.
(e) If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such Net Available Cash shall record date, and no further interest will be invested payable to Holders who tender Notes pursuant to the Asset Disposition Offer.
(f) On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Notes so validly tendered and not properly withdrawn, in Temporary Cash Investments each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or applied portions thereof were accepted for payment by the Company in accordance with the terms of this Section 5.11 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. The Company or the paying agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Disposition Offer Period) mail or deliver to temporarily reduce revolving credit indebtednesseach tendering Holder of Notes or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Notes or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided, that each such new Note will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess of $2,000. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Note not so accepted will be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date.
(g) The Company will comply, to the extent applicable, with the requirements of Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to an Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 5.11, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of its compliance with such securities laws or regulations.
(h) For the purposes of this clause (2) of Section 4.06(a)5.11(a) above, the following are will be deemed to be cash or cash equivalents: cash:
(1) the assumption by the transferee of Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the Company or Indebtedness of a Restricted Subsidiary (other than Guarantor Subordinated Obligations or Disqualified Stock of any Restricted Subsidiary that is a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with Section 5.11(b)(1)); and
(2) securities securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
cash within 180 days after receipt thereof. Notwithstanding the foregoing, the 75% limitation referred to in clause (b2) In the event of an Section 5.11(a) above shall be deemed satisfied with respect to any Asset Disposition that requires in which the purchase of Securities (and other Senior Subordinated Indebtedness cash or Cash Equivalents portion of the Company) pursuant to Section 4.06(a)(3)(C)consideration received therefrom, the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) determined in accordance with the procedures (including prorating in foregoing provision on an after-tax basis, is equal to or greater than what the event of overafter-subscription) set forth in Section 4.06(c). If tax proceeds would have been had such Asset Disposition complied with the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition)aforementioned 75% limitation.
(1i) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples The requirement of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a5.11(b) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security above shall be deemed to have been accepted for purchase at be satisfied if an agreement (including a lease, whether a capital lease or an operating lease) committing to make the time the Trustee, directly acquisitions or through an agent, mails or delivers payment therefor expenditures referred to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, therein is entered into by the Company shall comply with or its Restricted Subsidiary within the applicable securities laws specified time period and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance such Net Available Cash is subsequently applied in accordance with such securities laws or regulationsagreement within six months following such agreement.
Appears in 2 contracts
Samples: Fifth Supplemental Indenture (SM Energy Co), Fourth Supplemental Indenture (SM Energy Co)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall notwill not conduct, and shall will not permit any of its Restricted Subsidiary toSubsidiaries to conduct, directly or indirectly, consummate any an Asset Disposition unless Sale unless:
(1) the Company (or such the Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such Asset Disposition Sale at least equal to the fair market value (including as evidenced by a Board Resolution set forth in an Officers' Certificate delivered to the value of all non-cash consideration)Trustee prior to, as determined in good faith by or contemporaneously with, the Board of Directors, consummation of the shares and Asset Sale) of the assets subject to such Asset Dispositionsold or otherwise disposed of; and
(2) at least 8075% of the consideration thereof therefor received by the Company or such Restricted Subsidiary is in 57
(a) except to the extent form of cash or Cash Equivalents; provided, however, that the aggregate Net Available Cash from all Asset Dispositions which is not applied amount of (A) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(athe notes thereto), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary (other than Disqualified Stock and liabilities that are by their terms subordinated to the release Securities or the Subsidiary Guarantees that are assumed by the transferee of the Company or any such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition assets), and (2B) securities any securities, Securities or other obligations received by the Company or any such Restricted Subsidiary from the such transferee that are promptly converted by the Company or such Restricted Subsidiary in a reasonable and prompt manner into cash.
cash (to the extent of the cash received), shall be deemed to be cash for purposes of this provision. Within 180 days after any Asset Sale, the Company may apply the Net Proceeds from such Asset Sale at its option (a) to permanently reduce debt outstanding under secured Indebtedness (other than Disqualified Stock) of the Company and/or its Restricted Subsidiaries (and to make corresponding reductions to the commitments in respect thereof) or (b) In the event of to make an Asset Disposition that requires the purchase of Securities (and investment in a business or capital expenditure or other Senior Subordinated Indebtedness long-term assets of the Company) pursuant Company or its Restricted Subsidiaries. Pending the final application of any such Net Proceeds, the Company may invest such Net Proceeds in Cash Equivalents. Any Net Proceeds from the Asset Sale that are not applied or invested as provided in the first sentence of this paragraph will be deemed to Section 4.06(a)(3)(C)constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall purchase Securities tendered pursuant to make an offer by the Company for the Securities to all holders of notes (and such other Senior Subordinated Indebtedness of the Company) (the an "Asset Sale Offer") at a and, to the extent required by any Pari Passu Indebtedness, to all holders of Pari Passu Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase price of 100% of their such Pari Passu Indebtedness with the proceeds from any Asset Sale ("Pari Passu Notes") to purchase the maximum principal amount (or, in the event such other Senior Subordinated Indebtedness of Securities and Pari Passu Notes that may be purchased out of the Company was issued with significant original issue discountExcess Proceeds, at an offer price in cash in an amount equal to 100% of the accreted value thereof), without premium, principal amount thereof plus accrued but and unpaid interest (orto the date of purchase, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c)this Indenture. To the extent that the aggregate amount of Securities and Pari Passu Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate purchase price principal amount of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer Pari Passu Notes surrendered by holders thereof exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Trustee shall select the Securities and other Senior Subordinated Indebtedness the Pari Passu Notes to be purchased on a pro rata basis but in round denominationsbasis. Upon completion of such offer to purchase, which in even if Securities less than the case Excess Proceeds are tendered for purchase, the amount of Excess Proceeds shall be reset to zero. The Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the "Asset Sale Offer Period"). No later than five Business Days after the termination of the Securities Asset Sale Offer Period (the "Asset Sale Purchase Date"), the Company will be denominations of $1,000 purchase the principal amount or multiples thereof. The Company shall not be of Securities and Pari Passu Notes required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) be purchased pursuant to this Section 4.06 covenant (the "Asset Sale Offer Amount") or, if the Net Available Cash available therefor is less than $10.0 million (which lesser amount the Asset Sale Offer Amount has been tendered, all Securities and Pari Passu Notes tendered in response to the Asset Sale Offer. Payment for any Securities so purchased shall be carried forward for purposes of determining whether such made in the same manner as interest payments are made. If the Asset Sale Purchase Date is on or after an Offer is required with respect interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Net Available Cash from any subsequent Asset Disposition).
(1) PromptlyPerson in whose name a Security is registered at the close of business on such record date, and in any event within 10 days after no additional interest shall be payable to Holders who tender Securities or holders or lenders who tender Pari Passu Notes pursuant to the Company becomes obligated to make Asset Sale Offer. Upon the commencement of an Asset Sale Offer, the Company shall deliver send, by first class mail, a notice to the Trustee and sendeach of the Holders of the Securities, by first-class mail with a copy to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase priceTrustee. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to enable such Holders to tender Securities pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, together with the information contained in clause (3).shall state:
(2a) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from that the Asset Dispositions pursuant to which such Sale Offer is being made pursuant to this Section 3.5 and the length of time the Asset Sale Offer shall remain open;
(Cb) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such dateAsset Sale Offer Amount, the Company purchase price and the Asset Sale Purchase Date;
(c) that any Security not tendered or accepted for payment shall also irrevocably deposit with the Trustee continue to accrete or with a Paying Agent accrue interest;
(ord) that, if unless the Company is acting as its own Paying Agentdefaults in making such payment, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior any Security accepted for payment pursuant to the Purchase Date or on Asset Sale Offer shall cease to accrue interest after the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Asset Sale Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.;
(3e) that Holders electing to have a Security purchased pursuant to any Asset Sale Offer shall be required to surrender the Security with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Security, with an appro- priate form duly completed, to the Company Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three Business Days prior to days before the Asset Sale Purchase Date. ;
(f) that Holders shall be entitled to withdraw their election if the Trustee Company, the depositary or the Company receives Paying Agent, as the case may be, receives, not later than one Business Day prior to the Purchase Dateexpiration of the Asset Sale Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was Security, the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. ;
(g) that, if the aggregate principal amount of Securities and Pari Passu Notes surrendered by holders and lenders, as the case may be, exceeds the Asset Sale Offer Amount, the Company shall select the Securities and Pari Passu Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Securities and Pari Passu Notes in denominations of $1,000, or integral multiples thereof, shall be purchased); and
(h) that Holders whose Securities are were purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At . On or before the time Asset Sale Purchase Date, the Company delivers shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Sale Offer Amount of Securities and Pari Passu Notes or portions of Securities and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to the Asset Sale Offer, or if less than the Asset Sale Offer Amount has been validly tendered and not properly withdrawn, all Securities and Pari Passu Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000, and shall deliver to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be and Pari Passu Notes or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this SectionSection 3.5. A Security The Company, the depositary or the Paying Agent, as the case may be, shall be deemed promptly (but in any case not later than five days after the Asset Sale Purchase Date) mail or deliver to have been each tendering Holder an amount equal to the purchase price of the Securities or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase at purchase, and the time Company shall promptly issue a new Security, and the Trustee, directly upon written request from the Company shall authenticate and mail or through deliver such new Security to such Holder, in a principal amount equal to any unpurchased portion of the Security surrendered; provided that each such new Security will be in a principal amount of $1,000 or an agentintegral multiple of $1,000. In addition, mails the Company will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Security or delivers payment therefor Pari Passu Note, as the case may be, not so accepted shall be promptly mailed or delivered by the Company to the surrendering Holder.
(d) Holder thereof. The Company shall comply, to publicly announce the extent applicable, results of the Asset Sale Offer on the Asset Sale Purchase Date. The Company will comply with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws or and regulations thereunder to the extent such laws and regulations are applicable in connection with the purchase repurchase of the Securities pursuant to this Sectionthe Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Sectionthe Indenture, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section described in the Indenture by virtue of its compliance with such securities laws or regulationsthe conflict.
Appears in 2 contracts
Samples: Indenture (Portola Packaging, Inc. Mexico, S.A. De C.V.), Indenture (Portola Packaging Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall SPV Borrower, the US SPV Borrower and Ziggo Secured Finance II B.V. will not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any SPV Asset Sale.
(b) The Company, UPC NL Holdco and an Affiliate Covenant Party will not, and will not permit any of the Restricted Subsidiaries to, make any Asset Disposition unless unless:
(1) the Company Company, UPC NL Holdco, an Affiliate Covenant Party or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time (including by way of such Asset Disposition relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors or senior management of the Company (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; ;
(2) unless the Asset Disposition is a Permitted Asset Swap, at least 8075% of the consideration thereof from such Asset Disposition (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness) received by the Company Company, UPC NL Holdco, an Affiliate Covenant Party or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company, UPC NL Holdco, an Affiliate Covenant Party or such Restricted Subsidiary, as the case may be:
(A) to the extent the Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness), to prepay, repay or purchase Senior Indebtedness of the Company, UPC NL Holdco, an Affiliate Covenant Party or any other Covenant Party (including the Proceeds Loan), or Indebtedness of a Restricted Subsidiary that is not a Covenant Party (in each case other than Indebtedness owed to the Company, UPC NL Holdco, an Affiliate Covenant Party or an Affiliate of the Company) within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (a), the Company, UPC NL Holdco, an Affiliate Covenant Party such Covenant Party or such Restricted Subsidiary is will retire such Indebtedness and will cause the related commitment (if any) (except in 57the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; or
(aB) except to the extent the Company, UPC NL Holdco, an Affiliate Covenant Party or such Restricted Subsidiary elects to invest in or commit to invest in Additional Assets within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive agreement or a commitment approved by the Board of Directors or senior management of the Company that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 6 months of such 365th day; provided that pending the final application of any such Net Available Cash in accordance with clause (A) or clause (B) of this Section 4.10(b)(3), the Company, UPC NL Holdco, an Affiliate Covenant Party and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Agreement.
(c) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied as provided in Section 4.10(b)(3) will be deemed to constitute “Excess Proceeds”.
(d) To the extent that the Company, UPC NL Holdco or an Affiliate Covenant Party is required pursuant to the terms of the Indentures (or any similar terms in an instrument or agreement governing Senior Indebtedness other than the Finance Documents) to make an offer to redeem or prepay the Indebtedness thereunder (an “Excess Proceeds Redemption Offer”), then the Company, UPC NL Holdco or an Affiliate Covenant Party shall include the Outstandings under the Facilities in such offer to prepay (and shall provide notice of such offer to the Facility Agent), such that a portion of the Excess Proceeds (the “Prepayment Amount”) that is equivalent to the proportion that the aggregate amount of the Outstandings under the Facilities bears to the aggregate principal amount of other Senior Indebtedness is available to be applied and is so applied in prepayment of the Outstandings plus accrued and unpaid interest owed to each Lender under the Facilities (to the extent that such Lender accepts any such offer of prepayment).
(e) To the aggregate Net Available Cash from all Asset Dispositions which extent that the Company, UPC NL Holdco or an Affiliate Covenant Party is not required to make an Excess Proceeds Redemption Offer, the Company, UPC NL Holdco or an Affiliate Covenant Party shall procure that the Excess Proceeds are applied in accordance prepayment of the Outstandings plus accrued and unpaid interest under one or more Facilities selected by the Company.
(f) Following compliance with this Section 4.06(athe requirements of paragraph (d) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(aand (e), such Net Available Cash shall be invested the Company may use any remaining Excess Proceeds for general corporate purposes in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. any manner not prohibited by this Agreement.
(g) For the purposes of this Section 4.06(a)4.10, the following are will be deemed to be cash or cash equivalents: cash:
(1) the assumption by the transferee of Indebtedness (other than Subordinated Obligations) of the Company Company, UPC NL Holdco or any an Affiliate Covenant Party or Indebtedness of a Restricted Subsidiary and the release of the Company Company, UPC NL Holdco, an Affiliate Covenant Party or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with Section 4.10(b)(3)(A));
(2) securities securities, notes or other obligations received by the Company Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary from the transferee that are promptly converted convertible by the Company Company, UPC NL Holdco, an Affiliate Covenant Party or such Restricted Subsidiary into cash.cash or Cash Equivalents within 180 days following the closing of such Asset Disposition;
(b3) In Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the event extent that the Company, UPC NL Holdco, an Affiliate Covenant Party and each other Restricted Subsidiary are released from any guarantee of an payment of the principal amount of such Indebtedness in connection with such Asset Disposition that requires the purchase Disposition;
(4) consideration consisting of Securities (and other Senior Subordinated Indebtedness of the Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary;
(5) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer any Designated Non-Cash Consideration received by the Company for the Securities (and Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary in such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100Asset Dispositions having an aggregate fair market value not to exceed 25.0% of the accreted value thereof), without premium, plus accrued but unpaid interest consideration from such Asset Disposition (or, in respect of excluding any consideration received from such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) Asset Disposition in accordance with clauses (1) to (4) of Section 4.10(g)) (with the procedures fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(including prorating 6) in the event addition to any Designated Non-Cash Consideration received pursuant to clause (5) of overSection 4.10(g), Designated Non-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of Cash Consideration received by the Company) tendered pursuant to the Offer exceeds the Net Available , UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, taken together with all other Designated Non-Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) Consideration received pursuant to this Section 4.06 if clause (6) that is at that time outstanding, not to exceed the Net Available Cash available therefor is less than $10.0 greater of €120.0 million and 5.0% of Total Assets (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice fair market value of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount each item of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Designated Non-Cash from the Asset Dispositions pursuant to which such Offer is Consideration being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase measured at the time the Trustee, directly or through an agent, mails or delivers payment therefor received and without giving effect to the surrendering Holdersubsequent changes in value).
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.
Appears in 2 contracts
Samples: Additional Facility C Accession Deed (Liberty Global PLC), Additional Facility D Accession Deed (Liberty Global PLC)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless unless:
(1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, ) of the shares and assets subject to such Asset Disposition; and
(2ii) at least 8075% of the consideration thereof received by the Company or such Restricted Subsidiary is in 57the form of cash or Temporary Cash Investments. Within 450 days after the receipt of any Net Available Cash from such Asset Disposition (or, in the case of a Designated Foreign Asset Disposition, within the time period specified in the definition thereof), the Company or the applicable Restricted Subsidiary, as the case may be, shall apply the Net Available Cash from such Asset Disposition:
(aA) to reduce the outstanding principal amount of Credit Facility Indebtedness;
(B) to reduce the outstanding principal amount of any other Senior Indebtedness of the Company or a Subsidiary Guarantor; provided, however, that to the extent the Company or such Subsidiary Guarantor repays any such other Senior Indebtedness, the Company shall equally and ratably reduce the principal amount of Securities outstanding, through open-market purchases or through redemption, or shall offer (in accordance with the procedures set forth in Section 4.06(b)) to all Holders to purchase their Securities at 100% of the principal amount thereof, plus accrued but unpaid interest, if any, in an aggregate principal amount which, if the offer were accepted, would result in such reduction;
(C) to reduce the outstanding principal amount of Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor;
(D) to acquire Additional Assets; or
(E) to make capital expenditures that are used or useful in a Related Business, in the case of clauses (A), (B), and (C) other than Indebtedness owed to the Company or an Affiliate of the Company; provided that entering into and not abandoning or rejecting a binding commitment to acquire assets or property or make capital expenditures to satisfy clause (D) or (E) shall be treated as a permitted application of Net Available Cash from the date of such commitment; provided further, that (x) such acquisition or capital expenditure is consummated within 545 days after the later of the receipt of such Net Available Cash or the date of such Asset Disposition and (y) if such acquisition or capital expenditure is not consummated within the period set forth in subclause (x), the Net Available Cash not so applied will be deemed to constitute Excess Proceeds under Section 4.06(b). Notwithstanding the foregoing provisions of this Section 4.06, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 4.06 except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) 4.06 exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash75,000,000.
(b) In Any Net Available Cash that is not applied or invested as provided in Section 4.06(a) shall constitute “Excess Proceeds.” When the event aggregate amount of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C)Excess Proceeds exceeds $100,000,000, the Company shall purchase Securities tendered pursuant to make an offer by the Company for (an “Asset Disposition Offer”) to all Holders of the Securities (and, at the Company’s election, to holders of other Senior Indebtedness to purchase or redeem the maximum principal amount of Securities and such other Senior Subordinated Indebtedness that may be purchased out of the Company) (the "Offer") at a purchase amount of such Excess Proceeds. The offer price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, any Asset Disposition Offer shall be equal to 100% of the accreted value thereof), without premium, principal amount of the Securities and/or any such Senior Indebtedness plus accrued but and unpaid interest (orto the date of purchase, and shall be payable in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) cash in accordance with the procedures (including prorating in the event of over-subscriptionoversubscription) set forth in Section 4.06(c)this Indenture or the agreements governing the other Senior Indebtedness. If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Trustee shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which which, in the case of the Securities will Securities, shall be denominations of $1,000 2,000 principal amount or integral multiples of $1,000 in excess thereof. The Upon completion of each Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero and, so long as all Securities validly tendered and not withdrawn pursuant to such offer are purchased by the Company shall not be required to make an Offer in compliance with this Section 4.06, any excess of the offer amount over the amount applied to purchase Securities (and such other Senior Subordinated Indebtedness of the CompanyIndebtedness) pursuant to such offer may be applied by the Company for any purpose not prohibited by this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition)Indenture.
(1c) (i) Promptly, and in any event within 10 days after the Company becomes obligated to make an Asset Disposition Offer, the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Asset Disposition Offer is oversubscribed) in integral multiples of $1,000 2,000 of principal amountamount or any whole integral multiple of $1,000 in excess thereof, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "“Purchase Date"”) and shall contain such information concerning the business of the Company which the Company in good faith believes will shall enable such Holders to make an informed decision (which at a minimum will shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's ’s business subsequent to the date of the latest of such Reportsreports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Asset Disposition Offer, together with the information contained address referred to in clause (3)iii) below.
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.
Appears in 2 contracts
Samples: Indenture (NCR Corp), Indenture (NCR Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), ) as determined in good faith by the Board of Directors), of the shares and assets subject to such Asset Disposition; ;
(2) at least 8075% of the consideration thereof received by the Company or such Restricted Subsidiary is in 57the form of cash or Temporary Cash Equivalents; and
(a3) except an amount equal to 100% of the extent that the aggregate Net Available Cash from all such Asset Dispositions which Disposition is not applied by the Company (or such Restricted Subsidiary, as the case may be)
(A) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or Indebtedness (other than any Disqualified Stock) of a Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company) or an Affiliate of the Company within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(B) second, to the extent of the balance of such Net Available Cash after application in accordance with Section 4.06(3)(A), to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and
(C) third, to the extent of the balance of such Net Available Cash after application in accordance with Section 4.06(3)(A) and (B), to make an offer to the holders of the Notes (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Notes (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture; provided, however, that in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to Section 4.06(a4.06(3)(A) exceeds $10.0 millionor (C) above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased. Pending application of Net Available Cash pursuant to this Section 4.06(a)4.06, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness, if any. For the purposes of this Section 4.06(a)4.06, the following are deemed to be cash or cash equivalents: Temporary Cash Investments:
(1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and Disposition; and
(2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cashcash or Temporary Cash Investments.
(b) In the event of an Asset Disposition that requires the purchase of Securities Notes (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall will purchase Securities Notes tendered pursuant to an offer by the Company for the Securities Notes (and such other Senior Subordinated Indebtedness of the CompanyIndebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), ) without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated IndebtednessIndebtedness of the Company, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the CompanyIndebtedness) in accordance with the procedures (including prorating in the event of over-subscriptionoversubscription) set forth in Section 4.06(c)this Indenture. If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) securities tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall will select the Securities and other Senior Subordinated Indebtedness securities to be purchased on a pro rata basis but in round denominations, which in the case of the Securities Notes will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make such an Offer offer to purchase Securities Notes (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 covenant if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, Reports and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3)Section 4.06(c)(3) below.
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this SectionSection 4.06. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 4.06, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section 4.06 by virtue of its compliance with such securities laws or regulations.
Appears in 2 contracts
Samples: Indenture (Mothers Work Inc), Indenture (Especialty Brands LLC)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as such fair market value to the value of all non-cash consideration), as be determined in advance in good faith by an Officer or an officer of such Restricted Subsidiary with responsibility for such transaction, or if the Asset Disposition exceeds $50.0 million, by the Board of Directors, which determination shall be conclusive evidence of compliance with this provision), of the shares equity and assets subject to such Asset Disposition; (2) (A) at least 8075% of the consideration thereof received by the Company or such Restricted Subsidiary is in 57
the form of cash or cash equivalents, Additional Assets or any combination thereof (acollectively, the “Cash Consideration”) except to or (B) the extent that fair market value of all forms of consideration other than Cash Consideration received by the Company and its Restricted Subsidiaries since September 30, 2017 does not exceed in the aggregate 10% of ACNTA at the time of the applicable Asset Disposition (after giving effect to such Asset Disposition); and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, (i) if the assets subject to such Asset Disposition constitute Collateral, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Priority Lien Debt and other outstanding Priority Lien Obligations or Parity Lien Debt and other outstanding Parity Lien Obligations (in each case, other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased (and, with respect to Parity Lien Debt, such prepayment, repayment, redemption or purchase must be made either (x) for Securities only or (y) for Securities and other Parity Lien Debt, and in the case of subclause (y), by a pro rata prepayment, repayment or redemption of outstanding Securities and such other Parity Lien Debt or by an offer to purchase on a pro rata basis made to all holders of Securities and such other Parity Lien Debt) or (ii) if the assets subject to such Asset Dispositions which Disposition do not constitute Collateral, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Subsidiary Guarantor in each case that is Secured Debt or Indebtedness (other than Disqualified Stock) of a Wholly-Owned Subsidiary that is not applied a Subsidiary Guarantor (other than Indebtedness owed to the Company or an Affiliate of the Company) within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided such prepayment, repayment, redemption or purchase permanently retires, or reduces the related loan commitment (if any) for, such Indebtedness in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets or to make capital expenditures in the Oil and Gas Business within 540 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided that, without limitation of the provisions of Section 10.03, any such Additional Assets, including the assets of any Person that becomes a Subsidiary Guarantor as a result of such transaction, acquired with Net Available Cash from an Asset Disposition of Collateral are, to the extent required by the Priority Lien Documents or the Security Documents (and pursuant to the terms thereof), pledged as Collateral; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an offer to the Holders (and to holders of other Parity Lien Debt of the Company designated by the Company) to purchase Securities (and such other Parity Lien Debt of the Company) pursuant to and subject to the conditions contained in this Section 4.06(aIndenture, which purchase permanently reduces the outstanding amount of such Securities (and such other Parity Lien Debt) exceeds $10.0 millionin an amount equal to (or greater than) the principal amount purchased. Pending application of Net Available Cash pursuant to this Section 4.06(a4.07(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtednessIndebtedness (which may include Priority Lien Debt).
(b) Notwithstanding Section 4.07(a), the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with Section 4.07(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions, which is not applied in accordance with Section 4.07(a), exceeds $40.0 million during any calendar year. For the purposes of this Section 4.06(a4.07(a), the following are deemed to be cash or cash equivalents: equivalents (1i) any liabilities, as shown on the assumption of Indebtedness Company’s or such Restricted Subsidiary’s most recent balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the release Securities or any Subsidiary Guarantee) that are assumed by the transferee of any such Asset Disposition pursuant to (A) a customary novation agreement that releases the Company or such Restricted Subsidiary from all further liability on or (B) an assignment agreement that includes, in lieu of such Indebtedness a release, the agreement of the transferee or its parent company to indemnify and hold harmless the Company or such Restricted Subsidiary from and against any loss, liability or cost in connection with respect of such Asset Disposition assumed liability and (2ii) securities any non-Cash Consideration received by the Company or any Restricted Subsidiary from the transferee that are promptly converted is converted, monetized, sold or exchanged by the Company or such Restricted Subsidiary into cashcash or cash equivalents within 120 days of receipt. Notwithstanding the foregoing, the 75% limitation referred to in Section 4.07(a)(2) shall be deemed satisfied with respect to any Asset Disposition in which the cash or cash equivalents portion of the consideration received therefrom, determined in accordance with the foregoing provision on an after-tax basis, is equal to or greater than what the after-tax proceeds would have been had such Asset Disposition complied with the aforementioned 75% limitation. The requirement of Section 4.07(a)(3)(B) shall be deemed to be satisfied if an agreement (including a lease, whether a capital lease or an operating lease) committing to make the acquisitions or expenditures referred to therein is entered into by the Company or its Restricted Subsidiary within the time period specified in such clause and such Net Available Cash is subsequently applied in accordance with such agreement within six months following such agreement.
(bc) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness Parity Lien Debt of the Company) pursuant to Section 4.06(a)(3)(C4.07(a)(3)(C), the Company shall make such offer to purchase Securities on or before the 541st day after the later of the date of such Asset Disposition or the receipt of such Net Available Cash, and shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and if required or permitted by the terms of any other Parity Lien Debt, to the holders of such other Senior Subordinated Indebtedness of the Company) (the "Offer"Indebtedness) at a purchase price of 100% of their principal amount (or, in the event (x) such other Senior Subordinated Indebtedness Parity Lien Debt (other than the Existing Second Lien Notes) of the Company was issued with significant original issue discountdiscount greater than 2.5% and (y) the Existing Second Lien Notes are outstanding, 100% of the accreted value thereof), ) without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated IndebtednessParity Lien Debt of the Company, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness Parity Lien Debt of the Company) in accordance with the procedures (including prorating in the event of over-subscriptionoversubscription) set forth in Section 4.06(c)3.02; provided, however, that if the terms of an asset sale covenant relating to the Secured Debt outstanding as of the Issue Date would require that such Secured Debt be included in an offer hereunder for the Securities, and the terms of such Secured Debt require that the price offered to the Securities in such offer be at a price not greater than 100% of accreted value, the Company may make the offer for the Securities hereunder at a price of 100% of accreted value so long as the Company has previously made an offer with the then remaining Net Available Cash from the applicable Asset Disposition for the Securities under Section 4.07(a)(3)(A) or otherwise at a price of 100% of principal amount. If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) securities tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness securities to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will shall be minimum denominations of $1,000 2,000 principal amount or and whole multiples of $1,000 in excess thereof. The Company shall not be required to make such an Offer offer to purchase Securities (and other Senior Subordinated Indebtedness Parity Lien Debt of the Company) pursuant to this Section 4.06 4.07 if the Net Available Cash available therefor not applied or invested as provided in Section 4.07(a)(3)(A) or (B) is less than $10.0 20.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date Upon completion of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders an offer to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Companypurchase, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at be reduced by the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holderaggregate amount of such offer.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities pursuant to this SectionSection 4.07(c). To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 4.07(c), the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.07(c) by virtue of its compliance with such securities laws or regulations.
Appears in 2 contracts
Samples: Indenture (Denbury Resources Inc), Indenture (Denbury Resources Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall Company, UPC NL Holdco and an Affiliate Covenant Party will not, and shall will not permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company Company, UPC NL Holdco, an Affiliate Covenant Party or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time (including by way of such Asset Disposition relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors or senior management of the Company (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; ;
(2) unless the Asset Disposition is a Permitted Asset Swap, at least 8075% of the consideration thereof from such Asset Disposition (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness) received by the Company Company, UPC NL Holdco, an Affiliate Covenant Party or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company, UPC NL Holdco, an Affiliate Covenant Party or such Restricted Subsidiary, as the case may be:
(A) to the extent the Company, UPC NL Holdco, any Affiliate Covenant Party or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness), to prepay, repay or purchase Senior Indebtedness of the Company, UPC NL Holdco, an Affiliate Covenant Party or any other Obligor, or Indebtedness of a Restricted Subsidiary that is not an Obligor (in each case other than Indebtedness owed to the Company, UPC NL Holdco, an Affiliate Covenant Party or an Affiliate of the Company) within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (A), the Company, UPC NL Holdco, an Affiliate Covenant Party such Obligor or such Restricted Subsidiary is will retire such Indebtedness and will cause the related commitment (if any) (except in 57the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; or
(aB) except to the extent the Company, UPC NL Holdco, an Affiliate Covenant Party or such Restricted Subsidiary elects to invest in or commit to invest in Additional Assets within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive agreement or a commitment approved by the Board of Directors or senior management of the Company that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 6 months of such 365th day; provided that pending the final application of any such Net Available Cash in accordance with clause (A) or clause (B) of this Section 4.10(a)(3), the Company, UPC NL Holdco, an Affiliate Covenant Party and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Agreement.
(b) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied as provided in Section 4.10(a)(3) will be deemed to constitute “Excess Proceeds”.
(c) To the extent that the Company, UPC NL Holdco or an Affiliate Covenant Party is required pursuant to the terms of the Indentures (or any similar terms in an instrument or agreement governing Senior Indebtedness other than the Finance Documents) to make an offer to redeem or prepay the Indebtedness thereunder (an “Excess Proceeds Redemption Offer”), then the Company, UPC NL Holdco or an Affiliate Covenant Party shall include the Outstandings under the Facilities in such offer to prepay (and shall provide notice of such offer to the Facility Agent), such that a portion of the Excess Proceeds (the “Prepayment Amount”) that is equivalent to the proportion that the aggregate amount of the Outstandings under the Facilities bears to the aggregate principal amount of other Senior Indebtedness is available to be applied and is so applied in prepayment of the Outstandings plus accrued and unpaid interest owed to each Lender under the Facilities (to the extent that such Lender accepts any such offer of prepayment).
(d) To the aggregate Net Available Cash from all Asset Dispositions which extent that the Company, UPC NL Holdco or an Affiliate Covenant Party is not required to make an Excess Proceeds Redemption Offer, the Company, UPC NL Holdco or an Affiliate Covenant Party shall procure that the Excess Proceeds are applied in accordance prepayment of the Outstandings plus accrued and unpaid interest under one or more Facilities selected by the Company.
(e) Following compliance with this Section 4.06(athe requirements of paragraph (d) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(aand (e), such Net Available Cash shall be invested the Company may use any remaining Excess Proceeds for general corporate purposes in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. any manner not prohibited by this Agreement.
(f) For the purposes of this Section 4.06(a)4.10, the following are will be deemed to be cash or cash equivalents: cash:
(1) the assumption by the transferee of Indebtedness (other than Subordinated Obligations) of the Company Company, UPC NL Holdco, or any an Affiliate Covenant Party or Indebtedness of a Restricted Subsidiary and the release of the Company Company, UPC NL Holdco, an Affiliate Covenant Party or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with Section 4.10(a)(3)(A));
(2) securities securities, notes or other obligations received by the Company Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary from the transferee that are promptly converted convertible by the Company Company, UPC NL Holdco, an Affiliate Covenant Party or such Restricted Subsidiary into cash.cash or Cash Equivalents within 180 days following the closing of such Asset Disposition;
(b3) In Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the event extent that the Company, UPC NL Holdco, an Affiliate Covenant Party and each other Restricted Subsidiary are released from any guarantee of an payment of the principal amount of such Indebtedness in connection with such Asset Disposition that requires the purchase Disposition;
(4) consideration consisting of Securities (and other Senior Subordinated Indebtedness of the Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary;
(5) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer any Designated Non-Cash Consideration received by the Company for the Securities (and Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary in such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100Asset Dispositions having an aggregate fair market value not to exceed 25.0% of the accreted value thereof), without premium, plus accrued but unpaid interest consideration from such Asset Disposition (or, in respect of excluding any consideration received from such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) Asset Disposition in accordance with clauses (1) to (4) of Section 4.10(f)) (with the procedures fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(including prorating 6) in the event addition to any Designated Non-Cash Consideration received pursuant to clause (5) of overSection 4.10(f), Designated Non-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of Cash Consideration received by the Company) tendered pursuant to the Offer exceeds the Net Available , UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, taken together with all other Designated Non-Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) Consideration received pursuant to this Section 4.06 if clause (6) that is at that time outstanding, not to exceed the Net Available Cash available therefor is less than $10.0 greater of €120.0 million and 5.0% of Total Assets (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice fair market value of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount each item of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Designated Non-Cash from the Asset Dispositions pursuant to which such Offer is Consideration being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase measured at the time the Trustee, directly or through an agent, mails or delivers payment therefor received and without giving effect to the surrendering Holdersubsequent changes in value).
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.
Appears in 2 contracts
Samples: Additional Facility C Accession Deed (Liberty Global PLC), Additional Facility D Accession Deed (Liberty Global PLC)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (such Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; ;
(2) at least 8075% of the consideration thereof received by the Company Issuer or such Restricted Subsidiary, as the case may be, from such Asset Disposition is in the form of cash or Cash Equivalents or Additional Assets, or any combination thereof; and
(3) except as provided in the next paragraph an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied, within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, by the Issuer or such Restricted Subsidiary, as the case may be:
(a) to the extent the Issuer or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness) to prepay, repay, redeem or purchase Indebtedness of the Issuer under the Senior Secured Credit Agreement, any other Indebtedness of the Issuer or a Subsidiary Guarantor that is secured by a Lien permitted to be Incurred under this Indenture or Indebtedness (other than Disqualified Stock) of any Wholly-Owned Subsidiary that is not a Subsidiary Guarantor; provided, however, that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause (a), the Issuer or such Restricted Subsidiary is will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in 57an amount equal to the principal amount so prepaid, repaid or purchased; or
(ab) except to invest in Additional Assets; provided that pending the extent that the aggregate final application of any such Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a)4.16, the Issuer and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash shall in any manner not prohibited by this Indenture. Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in the preceding paragraph will be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) constitute “Excess Proceeds.” Not later than the assumption of Indebtedness day following the date that is one year from the later of the Company or any Restricted Subsidiary and the release date of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $20.0 million, the Issuer will be required to make an offer (“Asset Disposition Offer”) to all Holders and (2) securities received to the extent required by the Company or terms of other Pari Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the Issuer to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition (“Pari Passu Notes”), to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies that requires the purchase of Securities (and other Senior Subordinated Indebtedness may be purchased out of the Company) pursuant to Section 4.06(a)(3)(C)Excess Proceeds, the Company shall purchase Securities tendered pursuant to at an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of in cash in an amount equal to 100% of their the principal amount (or, in the event such other Senior Subordinated Pari Passu Indebtedness of the Company Issuer was issued with significant original issue discount, 100% of the accreted value thereof), without premium, ) of the Notes and Pari Passu Notes plus accrued but and unpaid interest and Liquidated Damages, if any, (or, or in respect of such other Senior Subordinated Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness Indebtedness) to the date of purchase (subject to the Company) right of holders of record on the relevant record date to receive interest due on the relevant interest payment date), in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c)this Indenture or the agreements governing the Pari Passu Notes, as applicable, in each case in denominations of at least $2,000 or an integral multiple of $1,000 thereafter. If the aggregate purchase price principal amount of Securities (Notes surrendered by holders thereof and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer Pari Passu Notes surrendered by holders or lenders, collectively, exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Trustee shall select the Securities and other Senior Subordinated Indebtedness Notes to be purchased on a pro rata basis but in round denominations, which in on the case basis of the Securities will be denominations of $1,000 aggregate principal amount or multiples thereofof tendered Notes and Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. The Company shall not be Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and Pari Passu Notes required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) be purchased pursuant to this Section 4.06 4.16 (the “Asset Disposition Offer Amount”) or, if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an the Asset Disposition Offer is required with respect Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Net Available Cash from Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related interest payment date, any subsequent Asset Disposition).
(1) Promptlyaccrued and unpaid interest and Liquidated Damages, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and in any event within 10 days after no further interest or Liquidated Damages will be payable to holders who tender Notes pursuant to the Company becomes obligated Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Issuer will, to make an the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Company shall deliver to the Trustee Asset Disposition Offer Amount has been validly tendered and sendnot properly withdrawn, by first-class mail to all Notes and Pari Passu Notes so validly tendered and not properly withdrawn, in each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either case in whole denominations of at least $2,000 or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in an integral multiples multiple of $1,000 of principal amount, at the applicable purchase pricethereafter. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes Issuer will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' ’ Certificate stating that such Securities are to be Notes or portions thereof were accepted for payment by the Company pursuant to and Issuer in accordance with the terms of this SectionSection 4.16 and, in addition, the Issuer will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. A Security shall be deemed The Issuer or the paying agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Disposition Offer Period) mail or deliver to have been each tendering Holder or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Notes or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Issuer for purchase at purchase, and the time Issuer will promptly issue a new Note, and the Trustee, directly upon delivery of an Officers’ Certificate from the Issuer, will authenticate and mail or through deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount of $2,000 or an agentintegral multiple of $1,000 thereafter. In addition, mails the Issuer will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Note not so accepted will be promptly mailed or delivers payment therefor delivered by the Issuer to the surrendering Holder.
(d) Holder thereof. The Company shall Issuer will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this SectionIndenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 4.16, the Company shall Issuer will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulations. For the purposes of clause (2) of the first paragraph of this Section 4.16, the following will be deemed to be cash:
(1) the assumption by the transferee of Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the Issuer or Indebtedness of a Restricted Subsidiary (other than Guarantor Subordinated Obligations or Disqualified Stock of any Restricted Subsidiary that is a Subsidiary Guarantor) and the release of the Issuer or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition (or in lieu of such a release, the agreement of the acquirer or its parent company to indemnify and hold the Issuer or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed Indebtedness; provided, however, that such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating), in which case the Issuer will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with clause (3)(a) of the first paragraph of this Section 4.16); and
(2) securities, notes or other obligations received by the Issuer or any Restricted Subsidiary from the transferee that are converted by the Issuer or such Restricted Subsidiary into cash within 90 days after receipt thereof. Notwithstanding the foregoing, the 75% limitation referred to in clause (2) of the first paragraph of this Section 4.16 shall be deemed satisfied with respect to any Asset Disposition in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with the foregoing provision on an after-tax basis, is equal to or greater than what the after-tax proceeds would have been had such Asset Disposition complied with the aforementioned 75% limitation. The requirement of clause (3)(b) of the first paragraph of this Section 4.16 above shall be deemed to be satisfied if an agreement (including a lease, whether a capital lease or an operating lease) committing to make the acquisitions or expenditures referred to therein is entered into by the Issuer or its Restricted Subsidiary within the specified time period and such Net Available Cash is subsequently applied in accordance with such agreement within six months following such agreement.
Appears in 2 contracts
Samples: Indenture (Chaparral Energy, Inc.), Indenture (Chaparral Energy, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at (both cash and non cash) equal to not less than the time Fair Market Value (such Xxxx Xxxxxx Value to be determined on the date of contractually agreeing to such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, Disposition) of the shares and assets subject to such Asset Disposition; ;
(2) at least 8075% of the consideration thereof from such Asset Disposition received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in 57the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:
(a) except to any liabilities (as shown on the extent that face of the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(aCompany’s or such Restricted Subsidiary’s then most recent balance sheet), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the release transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and further liability;
(2b) securities any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from the such transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) In second, to the event extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and or such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser priceearlier date, if any, as may the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be provided for applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Subordinated Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Company) Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (including prorating provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the event case of over-subscription) set forth Pari Passu Notes, in Section 4.06(c)such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate purchase price principal amount of Securities (Notes and any other Senior Subordinated Indebtedness of the Company) Pari Passu Notes validly tendered and not properly withdrawn pursuant to the an Asset Disposition Offer exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Trustee shall select the Securities Notes and other Senior Subordinated Indebtedness the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis but in round denominations, which in on the case basis of the Securities will be denominations of $1,000 aggregate principal amount or multiples thereofof such tendered Notes and Pari Passu Notes. The Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company shall not be will purchase the principal amount of Notes and Pari Passu Notes required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) be purchased pursuant to this Section 4.06 4.15 (the “Asset Disposition Offer Amount”) or, if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an the Asset Disposition Offer is required with respect Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after Disposition Offer. Upon the Company becomes obligated to make commencement of an Asset Disposition Offer, the Company shall deliver send, by first class mail, a notice to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase priceits registered address. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to enable such Holder to tender Securities Notes pursuant to the Asset Disposition Offer. Any Asset Disposition Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Disposition Offer, together with shall state:
(1) that the information contained in clause (3).Asset Disposition Offer is being made pursuant to this Section 4.15;
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Disposition Offer Amount to be held for payment in accordance with and the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Asset Disposition Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Security Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the SecurityNote, with an appro- priate the form duly entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three Business Days prior to days before the Asset Disposition Purchase Date. ;
(7) that Holders shall be entitled to withdraw their election if the Trustee Company, the Depository or the Company receives Paying Agent, as the case may be, receives, not later than one Business Day the second business day prior to the Asset Disposition Purchase Date, a telex, facsimile transmission or letter notice setting forth the name of the Holder, the principal amount of the Security which was Note the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security Note purchased. ;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) that Holders whose Securities are Notes were purchased only in part shall be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities surrendered.Notes surrendered (or transferred by book-entry transfer); and
(410) At all other procedures, if any, determined by the time Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Company delivers Securities will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of such Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' ’ Certificate stating that such Securities are to be Notes or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this SectionSection 4.15 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. A Security The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after termination of the Asset Disposition Offer Period) mail or deliver to each tendering Holder of Notes or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Notes or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Note not so accepted will be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have been accepted sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purchase at purposes of this Section 4.15, and shall comply with the time provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Trustee, directly Fair Market Value of such properties and assets of the Company or through an agent, mails or delivers payment therefor its Restricted Subsidiaries deemed to the surrendering Holder.
(d) be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company shall will comply, to the extent applicable, with the requirements of Section Rule 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this SectionSection 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 4.15, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulationsany conflict.
Appears in 2 contracts
Samples: Indenture (Davita Inc), Indenture (Davita Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate any Asset Disposition unless unless:
(1) the Company or such a Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including measured as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject date of the definitive agreement with respect to such Asset Disposition; ), of the assets and Equity Interests issued or sold pursuant to such Asset Disposition;
(2) at least 8075% of the aggregate consideration thereof received by the Company or such its Restricted Subsidiary Subsidiaries in the Asset Disposition and all other Asset Dispositions since the Issue Date is in 57the form of cash or Temporary Cash Investments, Additional Assets or any combination thereof (collectively, the “Cash Consideration”); provided that each of the following will be deemed to be cash:
(a) except to any liabilities, as shown on the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a)Company’s most recent consolidated balance sheet, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the release Securities or any Subsidiary Guarantee) that are assumed, forgiven or otherwise extinguished by the transferee by written agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(b) with respect to any Asset Disposition of Oil and Gas Properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary from all liability on related to the exploration, development, completion or production of such Indebtedness in connection with such Asset Disposition properties and activities related thereto which the transferee (2or an Affiliate thereof) securities agrees to pay;
(c) any securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are promptly are, within 180 days of the Asset Disposition, converted by the Company or such Restricted Subsidiary into cash., to the extent of the cash received in that conversion; and
(d) any Designated Non-Cash Consideration received by the Company or such Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (d), not to exceed an amount equal to 7.5% of the Company’s ACNTA (determined at the time of receipt of such Designated Non-Cash Consideration), with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or a Restricted Subsidiary, as the case may be) within 365 days to:
(a) prepay, repay, redeem or purchase any Senior Debt;
(b) In acquire Additional Assets; or
(c) make capital expenditures in a Permitted Business. The requirement of clauses (3)(b) and (3)(c) of the event preceding paragraph of an Asset Disposition that requires this Section 3.5 shall be deemed to be satisfied if a bona fide binding contract committing to make the purchase of Securities investment, acquisition or expenditure referred to therein is entered into by the Company (and other Senior Subordinated Indebtedness or any Restricted Subsidiary of the Company) with a Person other than a Restricted Subsidiary of the Company within the time period specified in the preceding paragraph and such Net Available Cash is subsequently applied in accordance with such contract within six months following the date such agreement is entered into. Pending application of Net Available Cash pursuant to this Section 4.06(a)(3)(C)3.5, the Company or any Restricted Subsidiary of the Company may apply the Net Available Cash to temporarily reducing Indebtedness under any Credit Facility or otherwise invest the Net Available Cash in any manner that is not prohibited by this Indenture. The amount of Net Available Cash not applied or invested as provided above will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds equals or exceeds $50.0 million, the Company shall make an offer to purchase Securities and other Pari Passu Indebtedness of the Company (an “Asset Disposition Offer”) within 30 days, and shall purchase Securities tendered pursuant to an offer Offer by the Company for the Securities (and such other Senior Subordinated Pari Passu Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest to, but not including, the date of purchase, subject to the right of Holders of record on the relevant record date to receive interest on the relevant interest payment date (or, in respect of such other Senior Subordinated IndebtednessPari Passu Indebtedness of the Company, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Pari Passu Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscriptionoversubscription) set forth below in this Section 4.06(c3.5. Upon completion of an Asset Disposition Offer, Excess Proceeds will be deemed to be reset to zero. The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Securities and Pari Passu Indebtedness required to be purchased pursuant to this Section 3.5 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered and not properly withdrawn, all Securities and Pari Passu Indebtedness validly tendered and not properly withdrawn in response to the Asset Disposition Offer. If the aggregate purchase price Asset Disposition Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, will be paid to the Person in whose name a Security is registered at the close of business on such record date, and no further interest will be payable to Holders who tender Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds Asset Disposition Offer. On or before the Net Available Cash allotted to their purchaseAsset Disposition Purchase Date, the Company shall select will, to the Securities and other Senior Subordinated Indebtedness extent lawful, accept for payment, to be purchased the extent necessary on a pro rata basis but (except that any Securities represented by a Security in round denominations, which in the case of the Securities global form will be denominations selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), the Asset Disposition Offer Amount of Securities and Pari Passu Indebtedness or portions of Securities and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Securities and Pari Passu Indebtedness so validly tendered and not properly withdrawn, in each case in minimum principal amount of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (2,000 and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 in excess of $2,000; provided that if, following the repurchase of a portion of a Security, the remaining principal amountamount of such Security outstanding immediately after such repurchase would be less than $2,000, at then the applicable purchase priceportion of such Security so repurchased shall be reduced such that the remaining principal amount of such Security outstanding immediately after such repurchase is $2,000. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' ’ Certificate stating that such Securities are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this SectionSection 3.5 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Indebtedness. A Security shall be deemed The Company or the paying agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Disposition Offer Period) mail (or otherwise deliver in accordance with the applicable procedures of DTC) to have been each tendering Holder of Securities or holder or lender of Pari Passu Indebtedness, as the case may be, an amount equal to the purchase price of the Securities or Pari Passu Indebtedness so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase at purchase, and the time Company will promptly issue a new Security, and the Trustee, directly upon delivery of an authentication order from the Company, will authenticate and mail or through deliver such new Security to such Holder, in a principal amount equal to any unpurchased portion of the Security surrendered; provided that each such new Security will be in a minimum principal amount of $2,000 or an agentintegral multiple of $1,000 in excess of $2,000. In addition, mails the Company will take any and all other actions required by the agreements governing the Pari Passu Indebtedness. Any Security not so accepted will be promptly mailed or delivers payment therefor delivered by the Company to the surrendering Holder.
(d) Holder thereof. The Company shall will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date. The Company will comply, to the extent applicable, with the requirements of Section 14(e) Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities pursuant to this Sectionan Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 3.5, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulations.
Appears in 2 contracts
Samples: Indenture (CNX Resources Corp), Indenture (CNX Resources Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at (both cash and non-cash) equal to not less than the time Fair Market Value (such Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, Disposition) of the shares and assets subject to such Asset Disposition; ;
(2) at least 8075% of the consideration thereof from such Asset Disposition received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in 57the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:
(a) except to any liabilities (as shown on the extent that face of the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(aCompany’s or such Restricted Subsidiary’s then most recent balance sheet), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the release transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and further liability;
(2b) securities any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from the such transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness), to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or such Restricted Subsidiary elects, to invest in Replacement Assets within the applicable Application Period; and
(b) In second, to the event extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and or such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser priceearlier date, if any, as may the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be provided for applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Subordinated Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Company) Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (including prorating provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the event case of over-subscription) set forth Pari Passu Notes, in Section 4.06(c)such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate purchase price principal amount of Securities (Notes and any other Senior Subordinated Indebtedness of the Company) Pari Passu Notes validly tendered and not properly withdrawn pursuant to the an Asset Disposition Offer exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Trustee shall select the Securities Notes and other Senior Subordinated Indebtedness the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis but in round denominations, which in on the case basis of the Securities will be denominations of $1,000 aggregate principal amount or multiples thereofof such tendered Notes and Pari Passu Notes. The Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company shall not be will purchase the principal amount of Notes and Pari Passu Notes required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) be purchased pursuant to this Section 4.06 4.15 (the “Asset Disposition Offer Amount”) or, if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an the Asset Disposition Offer is required with respect Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after Disposition Offer. Upon the Company becomes obligated to make commencement of an Asset Disposition Offer, the Company shall deliver send, by first class mail, a notice to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase priceits registered address. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to enable such Holder to tender Securities Notes pursuant to the Asset Disposition Offer. Any Asset Disposition Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Disposition Offer, together with shall state:
(1) that the information contained in clause (3).Asset Disposition Offer is being made pursuant to this Section 4.15;
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Disposition Offer Amount to be held for payment in accordance with and the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Asset Disposition Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Security Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the SecurityNote, with an appro- priate the form duly entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three Business Days prior to days before the Asset Disposition Purchase Date. ;
(7) that Holders shall be entitled to withdraw their election if the Trustee Company, the Depository or the Company receives Paying Agent, as the case may be, receives, not later than one Business Day the second business day prior to the Asset Disposition Purchase Date, a telex, facsimile transmission or letter notice setting forth the name of the Holder, the principal amount of the Security which was Note the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security Note purchased. ;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) that Holders whose Securities are Notes were purchased only in part shall be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities surrendered.Notes surrendered (or transferred by book-entry transfer); and
(410) At all other procedures, if any, determined by the time Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Company delivers Securities will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of such Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' ’ Certificate stating that such Securities are to be Notes or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this SectionSection 4.15 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. A Security The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after termination of the Asset Disposition Offer Period) mail or deliver to each tendering Holder of Notes or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Notes or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Note not so accepted will be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have been accepted sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purchase at purposes of this Section 4.15, and shall comply with the time provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Trustee, directly Fair Market Value of such properties and assets of the Company or through an agent, mails or delivers payment therefor its Restricted Subsidiaries deemed to the surrendering Holder.
(d) be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company shall will comply, to the extent applicable, with the requirements of Section Rule 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this SectionSection 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 4.15, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulationsany conflict.
Appears in 2 contracts
Samples: Indenture (Physicians Management, LLC), Indenture (Physicians Management, LLC)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as such Fair Market Value to be determined on the value date of all non-cash consideration), as determined in good faith by the Board of Directors, contractually agreeing to such Asset Disposition) of the shares and or other assets subject to such Asset Disposition; and
(2) at least 8075% of the aggregate consideration thereof received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, from such Asset Disposition and all other Asset Dispositions since the Issue Date, on a cumulative basis, is in 57the form of cash or Cash Equivalents or Additional Assets, or any combination thereof.
(b) The Net Available Cash from such Asset Disposition may be applied, within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, by the Company or such Restricted Subsidiary, as the case may be:
(1) to prepay, repay, redeem or purchase Indebtedness of the Company (including the Notes) or a Subsidiary Guarantor (other than Subordinated Obligations, Guarantor Subordinated Obligations or Disqualified Stock) or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor (in each case, excluding Indebtedness owed to the Company or an Affiliate of the Company); provided, however, that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause (b), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; or
(2) to make capital expenditures in the Oil and Gas Business or to invest in or acquire Additional Assets; provided, that (i) pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) of this Section 4.13, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture and (ii) Net Available Cash from an Asset Disposition consummated prior to the second anniversary of the Issue Date may not be applied to repurchase, redeem, defease or otherwise acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Unsecured Debt.
(c) Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in Section 4.13(b) will be deemed to constitute “Excess Proceeds.” Not later than the 366th day from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Pari Passu Indebtedness or Indebtedness secured by Prior Liens (collectively, “Subject Debt”), to all holders of Subject Debt outstanding with similar provisions requiring the Company to make an offer to purchase such Subject Debt with the proceeds from any Asset Disposition to purchase the maximum principal amount of Notes and any such Subject Debt to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount (or, in the event such Subject Debt was issued with significant original issue discount, 100% of the accreted value thereof) of the Notes and Subject Debt plus accrued and unpaid interest, if any (or in respect of such Subject Debt, such lesser price, if any, as may be provided for by the terms of such Indebtedness), to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture or the agreements governing the Subject Debt, as applicable, in each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000. If the aggregate principal amount of Notes surrendered by Holders thereof and other Subject Debt surrendered by Holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Subject Debt. To the extent that the aggregate principal amount of Notes and Subject Debt so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to Articles Four and Five of this Indenture. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(d) The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the aggregate Net Available Cash from all “Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 millionDisposition Offer Period”). Pending application No later than five Business Days after the termination of Net Available Cash the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Subject Debt required to be purchased pursuant to this Section 4.06(a)4.13 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered and not properly withdrawn, all Notes and Subject Debt validly tendered and not properly withdrawn in response to the Asset Disposition Offer.
(e) If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such Net Available Cash shall record date, and no further interest will be invested payable to Holders who tender Notes pursuant to the Asset Disposition Offer.
(f) On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Subject Debt or portions of Notes and Subject Debt so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Subject Debt so validly tendered and not properly withdrawn, in Temporary Cash Investments each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or applied portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.13 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Subject Debt. The Company or the paying agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Disposition Offer Period) mail or deliver to temporarily reduce revolving credit indebtednesseach tendering Holder of Notes or holder or lender of Subject Debt, as the case may be, an amount equal to the purchase price of the Notes or Subject Debt so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided, that each such new Note will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess of $2,000. In addition, the Company will take any and all other actions required by the agreements governing the Subject Debt. Any Note not so accepted will be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date.
(g) The Company will comply, to the extent applicable, with the requirements of Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to an Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.13, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of its compliance with such securities laws or regulations.
(h) For the purposes of this clause (2) of Section 4.06(a)4.13(a) above, the following are will be deemed to be cash or cash equivalents: cash:
(1) the assumption by the transferee of Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the Company or Indebtedness of a Restricted Subsidiary (other than Guarantor Subordinated Obligations or Disqualified Stock of any Restricted Subsidiary that is a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with Section 4.13(b)(1)); and
(2) securities securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
cash within 180 days after receipt thereof. Notwithstanding the foregoing, the 75% limitation referred to in clause (b2) In the event of an Section 4.13(a) above shall be deemed satisfied with respect to any Asset Disposition that requires in which the purchase of Securities (and other Senior Subordinated Indebtedness cash or Cash Equivalents portion of the Company) pursuant to Section 4.06(a)(3)(C)consideration received therefrom, the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) determined in accordance with the procedures (including prorating in foregoing provision on an after-tax basis, is equal to or greater than what the event of overafter-subscription) set forth in Section 4.06(c). If tax proceeds would have been had such Asset Disposition complied with the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition)aforementioned 75% limitation.
(1i) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples The requirement of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a4.13(b) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security above shall be deemed to have been accepted for purchase at be satisfied if an agreement (including a lease, whether a capital lease or an operating lease) committing to make the time the Trustee, directly acquisitions or through an agent, mails or delivers payment therefor expenditures referred to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, therein is entered into by the Company shall comply with or its Restricted Subsidiary within the applicable securities laws specified time period and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance such Net Available Cash is subsequently applied in accordance with such securities laws or regulationsagreement within six months following such agreement.
Appears in 2 contracts
Samples: Supplemental Indenture (Goodrich Petroleum Corp), Indenture (Goodrich Petroleum Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall U.S. Parent Borrower will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1i) the Company U.S. Parent Borrower or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset DispositionDisposition as such fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) may be determined (and shall be determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $100.0 million) in good faith by the U.S. Parent Borrower, whose determination shall be conclusive (including as to the value of all noncash consideration); and
(2ii) in the case of any Asset Disposition (or series of related Asset Dispositions) having a fair market value of $100.0 million or more, at least 8075.0% of the consideration thereof (excluding, in the case of each Asset Disposition (or series of related Asset Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, that are not Indebtedness) for such Asset Disposition, together with all other Asset Dispositions since the Closing Date (on a cumulative basis) received by the Company U.S. Parent Borrower or such Restricted Subsidiary is in 57the form of cash; provided that with respect to any such Asset Disposition of Accounts and/or Inventory with a fair market value of $10.0 million or more, an updated Borrowing Base Certificate shall be delivered to the Administrative Agent within five (5) Business Days (or such longer period as the Administrative Agent shall agree) of such Asset Disposition.
(ab) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a9.4(a)(ii), the following are deemed to be cash or cash equivalentscash: (1) Temporary Cash Investments and Cash Equivalents, (2) the assumption of Indebtedness of the Company U.S. Parent Borrower (other than Disqualified Stock of the U.S. Parent Borrower) or any Restricted Subsidiary and the release of the Company U.S. Parent Borrower or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition Disposition, (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the U.S. Parent Borrower and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (24) securities received by the Company U.S. Parent Borrower or any Restricted Subsidiary from the transferee that are promptly converted by the Company U.S. Parent Borrower or such Restricted Subsidiary into cash.
cash within 180 days, (b5) In consideration consisting of Indebtedness of the event U.S. Parent Borrower or any Restricted Subsidiary, (6) Additional Assets, and (7) any Designated Noncash Consideration received by the U.S. Parent Borrower or any of its Restricted Subsidiaries in an Asset Disposition that requires the purchase of Securities (and having an aggregate Fair Market Value, taken together with all other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) Designated Noncash Consideration received pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million clause (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports7), (B) a description of material developments in the Company's business subsequent not to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of exceed an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the aggregate amount of the Offer (the "Offer Amount"), including information as to at any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount time outstanding equal to the Offer Amount to be held for payment in accordance greater of $150.0 million and 2.50% of Consolidated Total Assets (with the provisions Fair Market Value of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration each item of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase Designated Noncash Consideration being measured at the time the Trustee, directly or through an agent, mails or delivers payment therefor received and without giving effect to the surrendering Holdersubsequent changes in value).
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.
Appears in 2 contracts
Samples: Abl Credit Agreement (Univar Inc.), Abl Credit Agreement (Univar Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value value, as determined in good faith by the Board of Directors (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; ;
(2) at least 8075% of the consideration thereof from such Asset Disposition received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in 57the form of cash, Cash Equivalents or Additional Assets; and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company or such Restricted Subsidiary, as the case may be:
(a) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Senior Indebtedness), to prepay, repay or purchase Senior Indebtedness or Indebtedness (other than any Preferred Stock) of the Company or Secured Indebtedness (other than any Preferred Stock) of a Restricted Subsidiary that is a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness, and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or repurchased; and
(b) to the extent the Company or such Restricted Subsidiary elects, to invest in Additional Assets within 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash. Pending the final application of any Net Available Cash, the Company may temporarily reduce its revolving credit borrowings or otherwise invest such Net Available Cash in any manner that is not prohibited by this Indenture.
(b) Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in Section 3.8(a)(3) will be deemed to constitute "Excess Proceeds." On the 361st day after an Asset Disposition (or, if there exists any Senior Indebtedness with similar provisions requiring the Company to make an offer to purchase such Senior Indebtedness, on the 451st day after an Asset Disposition), if the aggregate amount of Excess Proceeds exceeds $10.0 million, the Issuers will be required to make an offer ("Asset Disposition Offer") to all Holders of Securities and to the extent required by the terms thereof, to all holders of other Senior Subordinated Indebtedness outstanding with similar provisions requiring the Company or the Issuers to make an offer to purchase such Senior Subordinated Indebtedness with the proceeds from any Asset Disposition ("Pari Passu Notes"), to purchase the maximum principal amount of Securities and any such Pari Passu Securities to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Securities, as applicable. To the extent that the aggregate amount of Securities and Pari Passu Securities so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Issuers may use any remaining Excess Proceeds for general corporate or partnership purposes, subject to the other covenants contained in this Indenture. If the aggregate principal amount of Securities surrendered by Holders thereof and other Pari Passu Securities surrendered by holders or lenders thereof, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select the Securities to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Securities and Pari Passu Securities. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(1) The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the aggregate Net Available Cash from all "Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 millionDisposition Offer Period"). Pending application No later than five Business Days after the termination of Net Available Cash the Asset Disposition Offer Period (the "Asset Disposition Purchase Date"), the Issuers will purchase the principal amount of Securities and Pari Passu Notes required to be purchased pursuant to this Section 4.06(a)3.8 (the "Asset Disposition Offer Amount") or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Securities and Pari Passu Notes validly tendered in response to the Asset Disposition Offer.
(2) If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the Person in whose name a Security is registered at the close of business on such Net Available Cash shall record date, and no additional interest will be invested payable to Holders of the Securities who tender Securities pursuant to the Asset Disposition Offer.
(3) On or before the Asset Disposition Purchase Date, the Issuers will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Securities and Pari Passu Notes or portions of Securities and Pari Passu Notes thereof so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Securities and Pari Passu Notes so validly tendered and not properly withdrawn, in Temporary Cash Investments each case in integral multiples of $1,000. The Issuers will deliver to the Trustee an Officers' Certificate stating that such Securities or applied portions thereof were accepted for payment by the Issuers in accordance with the terms of this Section 3.8 and, in addition, the Issuers will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. The Issuers or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after termination of the Asset Disposition Offer Period) mail or deliver to temporarily reduce revolving credit indebtednesseach tendering Holder of Securities or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Securities or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Issuers for purchase, and the Issuers will promptly issue a new Security, and the Trustee, upon delivery of an Officers' Certificate from the Issuers will authenticate and mail or deliver such new Security to such Holder, in a principal amount equal to any unpurchased portion of the Security surrendered; provided that each such new Security will be in a principal amount of $1,000 or an integral multiple of $1,000. In addition, the Company or the Issuers will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Security not so accepted will be promptly mailed or delivered by the Issuers to the Holder thereof. The Issuers will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date.
(d) For the purposes of this Section 4.06(a)3.8, the following are will be deemed to be cash or cash equivalents: cash:
(1) the assumption by the transferee of Indebtedness (other than Senior Subordinated Indebtedness, Subordinated Obligations or Disqualified Stock) of the Company or Indebtedness (other than Preferred Stock) of any Restricted Subsidiary of the Company and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with Section 3.8(a)(3)(a) above); and
(2) securities securities, notes or other obligations received by the Company or any Restricted Subsidiary of the Company from the transferee that are converted promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(de) The Company shall Issuers will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities pursuant to this SectionSection 3.8. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 3.8, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulationsany conflict.
Appears in 2 contracts
Samples: Indenture (Plains Exploration & Production Co L P), Indenture (Plains Resources Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company Issuer or such any of its Restricted Subsidiary Subsidiaries receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as such Fair Market Value to be determined on the value date of all non-cash consideration), as determined in good faith by the Board of Directors, contractually agreeing to such Asset Disposition) of the shares and or other assets subject to such Asset Disposition; ;
(2) at least 8075% of the aggregate consideration thereof received by the Company Issuer or any of its Restricted Subsidiaries from such Asset Disposition and all other Asset Dispositions since the Issue Date, on a cumulative basis, is in the form of cash or Cash Equivalents or Additional Assets, or any combination thereof; and
(3) except as provided in the next paragraph, an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied, within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, by the Issuer or such Restricted Subsidiary, as the case may be:
(a) to prepay, repay, redeem or purchase Pari Passu Indebtedness of the Issuer (including the Securities) or a Subsidiary Guarantor or any Indebtedness (other than Disqualified Stock) of a Restricted Subsidiary that is not a Subsidiary Guarantor (in each case, excluding Indebtedness owed to the Issuer or an Affiliate of the Issuer); provided, however, that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause (a), the Issuer or such Restricted Subsidiary is will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in 57an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; or
(b) to invest in Additional Assets; provided that pending the final application of any such Net Available Cash in accordance with clause (a) except to or clause (b) above, the extent that the aggregate Issuer and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. Any Net Available Cash from all Asset Dispositions which that is not applied or invested as provided in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application the preceding paragraph will be deemed to constitute “Excess Proceeds.” Not later than the 366th day from the later of Net Available Cash pursuant to this Section 4.06(a), the date of such Asset Disposition or the receipt of such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For Cash, if the purposes aggregate amount of this Section 4.06(a)Excess Proceeds exceeds $20.0 million, the following are deemed Issuer will make an offer (“Asset Disposition Offer”) to all Holders of Securities and, to the extent required by the terms of other Pari Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the Issuer to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Securities”) to purchase the maximum principal amount of Securities and any such Pari Passu Securities to which the Asset Disposition Offer applies that may be cash or cash equivalents: (1) the assumption of Indebtedness purchased out of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C)Excess Proceeds, the Company shall purchase Securities tendered pursuant to at an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of in cash in an amount equal to 100% of their the principal amount (or, in the event such other Senior Subordinated Pari Passu Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, ) of the Securities and Pari Passu Securities plus accrued but and unpaid interest interest, if any (or, or in respect of such other Senior Subordinated Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness Indebtedness), to, but excluding, the date of purchase (subject to the Company) right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date), in accordance with the procedures (including prorating in the event of over-subscription) set forth in this Section 4.06(c)3.5 or the agreements governing the Pari Passu Securities, as applicable, in each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000. If the aggregate purchase price principal amount of Securities (surrendered by Holders thereof and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer Pari Passu Securities surrendered by holders or lenders, collectively, exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Trustee shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in on the case basis of the Securities will be denominations of $1,000 aggregate principal amount or multiples thereofof tendered Securities and Pari Passu Securities. To the extent that the aggregate principal amount of Securities and Pari Passu Securities so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Issuer and its Restricted Subsidiaries may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. The Company shall not be Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Securities and Pari Passu Securities required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) be purchased pursuant to this Section 4.06 3.5 (the “Asset Disposition Offer Amount”) or, if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an the Asset Disposition Offer is required with respect Amount has been so validly tendered and not properly withdrawn, all Securities and Pari Passu Securities validly tendered and not properly withdrawn in response to the Net Available Cash from Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related interest payment date, any subsequent Asset Disposition).
(1) Promptlyaccrued and unpaid interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and in any event within 10 days after no further interest will be payable to Holders who tender Securities pursuant to the Company becomes obligated Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Issuer will, to make an the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Securities and Pari Passu Securities or portions of Securities and Pari Passu Securities so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Company shall deliver to the Trustee Asset Disposition Offer Amount has been validly tendered and sendnot properly withdrawn, by first-class mail to all Securities and Pari Passu Securities so validly tendered and not properly withdrawn, in each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either case in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of principal amount, at the applicable purchase price$2,000. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes Issuer will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' ’ Certificate stating that such Securities are to be or portions thereof were accepted for payment by the Company pursuant to and Issuer in accordance with the terms of this SectionSection 3.5 and, in addition, the Issuer will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Securities. A Security shall be deemed The Issuer or the paying agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Disposition Offer Period) mail or deliver to have been each tendering Holder of Securities or holder or lender of Pari Passu Securities, as the case may be, an amount equal to the purchase price of the Securities or Pari Passu Securities so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Issuer for purchase at purchase, and the time Issuer will promptly issue a new Security, and the Trustee, directly upon delivery of an Officers’ Certificate from the Issuer, will authenticate and mail or through deliver such new Security to such Holder, in a principal amount equal to any unpurchased portion of the Security surrendered; provided that each such new Security will be in a minimum principal amount of $2,000 or an agentintegral multiple of $1,000 in excess of $2,000. In addition, mails the Issuer will take any and all other actions required by the agreements governing the Pari Passu Securities. Any Security not so accepted will be promptly mailed or delivers payment therefor delivered by the Issuer to the surrendering Holder.
(d) Holder thereof. The Company shall Issuer will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities pursuant to this Sectionan Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 3.5, the Company shall Issuer will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulations. For the purposes of clause (2) of the first paragraph of this Section 3.5, the following will be deemed to be cash:
(1) the assumption by the transferee of Indebtedness (other than Guarantor Subordinated Obligations or Disqualified Stock) of the Issuer or Indebtedness of a Restricted Subsidiary (other than Subordinated Obligations or Disqualified Stock of the Issuer and Guarantor Subordinated Obligations or Disqualified Stock of any Restricted Subsidiary that is a Subsidiary Guarantor) and the release of the Issuer or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition (in which case the Issuer will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with clause (3)(a) of the first paragraph of this Section 3.5;
(2) with respect to any Asset Disposition of oil and gas properties by the Issuer or any of its Restricted Subsidiaries in which the Issuer or such Restricted Subsidiary still retains an interest, any agreement by the transferee (or any Affiliate thereof) to pay all or a portion of the costs and expenses related to the exploration, development, completion or production of such properties and activities related thereto; and
(3) securities, notes or other obligations received by the Issuer or any Restricted Subsidiary from the transferee that are converted by the Issuer or such Restricted Subsidiary into cash within 180 days after receipt thereof. Notwithstanding the foregoing, the 75% limitation referred to in clause (2) of the first paragraph of this Section 3.5 shall be deemed satisfied with respect to any Asset Disposition in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with the foregoing provision on an after-tax basis, is equal to or greater than what the after-tax proceeds would have been had such Asset Disposition complied with the aforementioned 75% limitation. The requirement of clause (3)(b) of the first paragraph of this Section 3.5 shall be deemed to be satisfied if an agreement (including a lease, whether a capital lease or an operating lease) committing to make the acquisitions or expenditures referred to therein is entered into by the Issuer or its Restricted Subsidiary within the specified time period and such Net Available Cash is subsequently applied in accordance with such agreement within six months following such agreement. The Issuer will not, and will not permit any Restricted Subsidiary to, engage in any Asset Swaps, unless:
(1) at the time of entering into such Asset Swap and immediately after giving effect to such Asset Swap, no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(2) in the event such Asset Swap involves the transfer by the Issuer or any Restricted Subsidiary of assets having an aggregate Fair Market Value in excess of $20.0 million, the terms of such Asset Swap have been approved by a majority of the members of the Board of Directors of the Issuer.
Appears in 2 contracts
Samples: Indenture (ANTERO RESOURCES Corp), Indenture (ANTERO RESOURCES Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company Issuer shall not, and nor shall not the Issuer permit any Restricted Subsidiary toSubsidiary, directly or indirectly, to consummate any Asset Disposition unless unless:
(1) the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as such Fair Market Value to be determined on the value date of all non-cash consideration), as determined in good faith by the Board of Directors, contractually agreeing to such Asset Disposition) of the shares Equity Interests and assets subject to such Asset Disposition; and
(2) at least 8075% of the consideration thereof from such Asset Disposition received by the Company Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents.
(b) Within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, the Issuer or any Restricted Subsidiary may apply, at its option, an amount in cash (a “Net Available Cash Amount”) equal to 100% of the Net Available Cash from such Asset Disposition:
(1) to repay any Senior Indebtedness of the Issuer or its Restricted Subsidiaries or to make an offer to repurchase or redeem such Indebtedness, provided that such repurchase or redemption closes within 45 days after the end of such 365-day period; and, in each case, owing to a Person other than the Issuer or any Restricted Subsidiary;
(2) to acquire all or substantially all of the properties or assets of, or any Capital Stock of, a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Permitted Business is or becomes a Restricted Subsidiary of the Issuer;
(3) to make a capital expenditure in a Permitted Business;
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; or
(5) in any combination of applications described in (1), (2), (3) or (4) above; provided that pending the final application of any such Net Available Cash Amounts in accordance with Section 4.5(b)(1), (2), (3), (4) or (5) and Section 4.5(d), the Issuer and the Restricted Subsidiaries may Invest or otherwise use such Net Available Cash Amounts in any manner not prohibited by this Indenture; provided, further, that in the case of Section 4.5(b)(2), (3) and (4), a binding commitment to invest in properties, assets, Capital Stock, or to make such capital expenditures shall be treated as a permitted application of Net Available Cash Amounts from the date of such commitment so long as the Issuer or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Available Cash Amounts will be applied to satisfy such commitment within 365 days of such commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before such Net Available Cash Amounts are applied in 57connection therewith, the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 365 days of such cancellation or termination, it being understood that if a Second Commitment is later cancelled or terminated for any reason before such Net Available Cash Amounts are applied, then such Net Available Cash Amounts shall constitute Excess Proceeds.
(ac) except For the purposes of Section 4.5(a)(2) and for no other purpose, the following shall be deemed to be cash:
(1) any liabilities (as shown on the Issuer’s or such Restricted Subsidiary’s most recent balance sheet) of the Issuer or any Restricted Subsidiary (other than (x) liabilities that are by their terms subordinated to the Notes or the Note guarantees, (y) Preferred Stock and (z) Disqualified Stock) that are assumed by the transferee of any such assets (or that are otherwise cancelled, forgiven or terminated in connection with the transaction with such transferee);
(2) the principal amount of any Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Disposition (other than intercompany debt owed to the Issuer or the Restricted Subsidiaries), to the extent that the aggregate Net Available Cash Issuer and each Restricted Subsidiary are released from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application any guarantee of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness payment of the Company or any Restricted Subsidiary and the release principal amount of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and Disposition;
(23) securities any Designated Non-Cash Consideration received by the Company Issuer or such Restricted Subsidiary in respect of such sale, transfer, lease or other disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (3) that is at that time outstanding, not in excess of 5% of Consolidated Net Tangible Assets of the Issuer, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(4) any securities or other Obligations received by the Issuer or any Restricted Subsidiary from the transferee that are promptly converted by the Company Issuer or such Restricted Subsidiary into cashcash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Disposition.
(bd) In Any amount of Net Available Cash from Asset Dispositions that is not applied or invested as provided in Section 4.5(b) shall be deemed to constitute “Excess Proceeds.” On the event of 366th day after an Asset Disposition, or earlier at the Issuer’s option, if the aggregate amount of Excess Proceeds exceeds $50 million, the Issuer or a Restricted Subsidiary shall make an offer (“Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness Offer”) to all Holders of the Company) pursuant Notes and, at the Issuer’s election, to Section 4.06(a)(3)(C)the holders of any Pari Passu Indebtedness, to purchase the Company shall purchase Securities tendered pursuant to maximum aggregate principal amount of Notes and any such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds, at an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal in cash in an amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, equal to 100% of the accreted value principal amount thereof), without premium, plus accrued but and unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser priceinterest, if any, as may be provided for by to but not including the terms date of such Senior Subordinated Indebtedness purchase (subject to the right of Holders of record on a record date to receive interest due on the Company) relevant interest payment date), in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c)this Indenture or the agreements governing the relevant Pari Passu Indebtedness, as applicable, in each case in denominations of $2,000 and larger integral multiples of $1,000 in excess thereof. The Issuer or such Restricted Subsidiary will commence an Asset Disposition Offer with respect to Excess Proceeds by sending (or otherwise delivered in accordance with the applicable procedures of DTC) the notice required pursuant to the terms of this Indenture to the Holders of the Notes at each Holder’s registered address, with a copy to the Trustee. To the extent that the aggregate amount of Notes and the relevant Pari Passu Indebtedness validly tendered and not validly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Issuer or a Restricted Subsidiary may use any remaining Excess Proceeds for any purpose, subject to other covenants contained in this Indenture. If the aggregate purchase price principal amount of Securities (Notes surrendered by Holders thereof and any other Senior Subordinated Pari Passu Indebtedness of the Company) tendered pursuant to the Offer surrendered by holders or lenders, collectively, exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company shall select the Securities Notes and other Senior Subordinated Pari Passu Indebtedness to be purchased repurchased shall be selected on a pro rata basis but in round denominations, which in on the case basis of the Securities will be denominations of $1,000 aggregate principal amount of tendered Notes and tendered Pari Passu Indebtedness. Upon completion of such Asset Disposition Offer, regardless of the amount of Excess Proceeds used to purchase Notes or multiples thereofother Pari Passu Indebtedness pursuant to such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(e) The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). The Company shall not be No later than five Business Days after the termination of the Asset Disposition Offer Period, the Issuer or the applicable Restricted Subsidiary will apply all Excess Proceeds to the purchase of the aggregate principal amount of Notes and, if applicable, Pari Passu Indebtedness required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) be purchased pursuant to this Section 4.06 4.5 (the “Asset Disposition Offer Amount”) or, if the Net Available Cash available therefor is less than $10.0 million the Asset Disposition Offer Amount of Notes (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect and, if applicable, Pari Passu Indebtedness) has been so validly tendered and not validly withdrawn, all Notes and Pari Passu Indebtedness validly tendered and not validly withdrawn in response to the Net Available Cash from Asset Disposition Offer. Payment for any subsequent Asset Disposition)Notes so purchased will be made in the same manner as interest payments are made.
(1f) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q Issuer and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall Restricted Subsidiary will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this SectionSection 4.5. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 4.5, the Company shall Issuer and such Restricted Subsidiary will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section 4.5 by virtue of its compliance with such securities laws or regulations.
Appears in 2 contracts
Samples: Indenture (Hess Midstream Partners LP), Indenture (Hess Midstream Partners LP)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and nor shall not it permit any Restricted Subsidiary toSubsidiary, directly or indirectly, to consummate any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as such Fair Market Value to be determined on the value date of all non-cash consideration), as determined in good faith by the Board of Directors, contractually agreeing to such Asset Disposition) of the shares Equity Interests and assets subject to such Asset Disposition; and
(2) at least 8075% of the consideration thereof from such Asset Disposition received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, however, that if the Leverage Ratio as of the last day of the Most Recent Fiscal Quarter prior to any Asset Disposition is (or, after giving pro forma effect to (consistent with the pro forma adjustment provisions set forth in the last paragraph of the definition of “Consolidated EBITDA”) such Asset Disposition, would be) 4.50 to 1.00 or less, the Company and its Restricted Subsidiaries shall not be required to comply with the restrictions and obligations set forth in this Section 4.5 with respect to any such Asset Disposition.
(b) Within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, the Company or any Restricted Subsidiary may apply, at its option, an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(1) to repay Obligations under the Credit Agreement and to correspondingly reduce commitments with respect thereto;
(2) to prepay, repay, redeem, reduce or purchase (and, in the case of a revolving credit facility, correspondingly reduce commitments with respect thereto) Obligations under Secured Indebtedness (or other secured Indebtedness under any Credit Facilities) of the Company or any Restricted Subsidiary (other than any Disqualified Stock or Subordinated Obligations) other than Indebtedness owed to the Company or a Restricted Subsidiary;
(3) to prepay, repay, redeem, reduce or purchase (and, in the case of a revolving credit facility, correspondingly reduce commitments with respect thereto) Obligations under other Indebtedness of the Company or any Restricted Subsidiary (other than any Disqualified Stock or Subordinated Obligations) other than Indebtedness owed to the Company or a Restricted Subsidiary; provided that the Company shall equally and ratably redeem or repurchase the Notes (i) pursuant to paragraph 5 of the Notes, (ii) through open market purchases or (iii) by making an Asset Disposition Offer (as defined below) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest on the amount of Notes that would otherwise be prepaid;
(4) to invest in Additional Assets or make capital expenditures in or that are used or useful in a Similar Business;
(5) to prepay, repay, reduce or purchase (and, in the case of a revolving credit facility, correspondingly reduce commitments with respect thereto) Obligations under Indebtedness of a Specified Consolidated Subsidiary that is not a Guarantor, other than Indebtedness owed to the Company or another Specified Consolidated Subsidiary; or
(6) in any combination of applications described in (1), (2), (3), (4) or (5) above; provided that pending the final application of any such Net Available Cash in accordance with clause (1), (2), (3), (4), (5) or (6) above and clause (c) below, the Company and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise use such Net Available Cash in any manner not prohibited by this Indenture; provided, further, that in the case of clause (4), a binding commitment to invest in Additional Assets or to make such capital expenditures shall be treated as a permitted application of an amount of Net Available Cash from the date of such commitment so long as the Company or such Restricted Subsidiary enters into such commitment with the good faith expectation that such amount of Net Available Cash will be applied to satisfy such commitment within 365 days of such commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later canceled or terminated for any reason before such amount of Net Available Cash is applied in connection therewith, the Company or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination, it being understood that if a Second Commitment is later canceled or terminated for any reason before such amount of Net Available Cash is applied, then such amount of Net Available Cash shall constitute Excess Proceeds. For the purposes of clause (a)(2) above and for no other purpose, the following will be deemed to be cash:
(1) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary (other than (x) liabilities that are by their terms subordinated to the Notes or the Guarantees, (y) Preferred Stock and (z) Disqualified Stock) that are assumed by the transferee of any such assets (or that are otherwise canceled, forgiven or terminated in connection with the transaction with such transferee) for which the Company and all such Restricted Subsidiaries have been validly released by all creditors in writing;
(2) the principal amount of any Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Disposition (other than intercompany debt owed to the Company or the Restricted Subsidiaries), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Disposition;
(3) any Designated Non-Cash Consideration received by the Company or such Restricted Subsidiary is in 57
(a) except to the extent that the respect of such sale, transfer, lease or other disposition having an aggregate Net Available Fair Market Value, taken together with all other Designated Non-Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash Consideration received pursuant to this Section 4.06(a)clause (3) that is at that time outstanding, such Net Available not in excess of $50 million, with the Fair Market Value of each item of Designated Non-Cash shall be invested Consideration being measured at the time received and without giving effect to subsequent changes in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: value;
(14) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of MLP Common Unit Consideration received by the Company or such Restricted Subsidiary from in respect of such sale, transfer, lease or other disposition having an aggregate Fair Market Value, taken together with all liability on other MLP Common Unit Consideration received pursuant to this clause (4) that is at that time outstanding, not in excess of $150 million, with the value of each item of MLP Common Unit Consideration being measured at the time received and without giving effect to subsequent changes in value;
(5) any interests or securities received by the MLP General Partner in respect of such Indebtedness sale, transfer, lease or other disposition in connection with such Asset Disposition and order to maintain a 2% general partner interest in the MLP; and
(26) securities any securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Disposition.
(c) Any amount of Net Available Cash from Asset Dispositions that is not applied or invested as provided in the first paragraph of clause (b) In above will be deemed to constitute “Excess Proceeds.” On the event of 366th day after an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of Disposition, or earlier at the Company) pursuant to Section 4.06(a)(3)(C)’s option, if the aggregate amount of Excess Proceeds exceeds $50 million, the Company shall purchase Securities tendered pursuant to or a Restricted Subsidiary will make an offer by (“Asset Disposition Offer”) to all Holders and, at the Company for Company’s election, to the Securities (holders of any Pari Passu Indebtedness, to purchase the maximum aggregate principal amount of Notes and any such other Senior Subordinated Pari Passu Indebtedness that may be purchased out of the Company) (the "Offer") Excess Proceeds, at a purchase an offer price of 100% of their principal in cash in an amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, equal to 100% of the accreted value principal amount thereof), without premium, plus accrued but and unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser priceinterest, if any, as may be provided for by to but not including the terms date of such Senior Subordinated Indebtedness purchase (subject to the right of Holders of record on a record date to receive interest due on the Company) relevant interest payment date), in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c)this Indenture or the agreements governing the relevant Pari Passu Indebtedness, as applicable, in each case in denominations of $2,000 and larger integral multiples of $1,000 in excess thereof. The Company or such Restricted Subsidiary will commence an Asset Disposition Offer with respect to Excess Proceeds by mailing or causing to be mailed by first-class mail (or otherwise delivered in accordance with the applicable procedures of the Depository) the notice required pursuant to the terms of this Indenture to the Holders at each Holder’s registered address, with a copy to the trustee. To the extent that the aggregate amount of Notes and the relevant Pari Passu Indebtedness validly tendered and not validly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company or a Restricted Subsidiary may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate purchase price principal amount of Securities (Notes surrendered by Holders thereof and any other Senior Subordinated Pari Passu Indebtedness of the Company) tendered pursuant to the Offer surrendered by holders or lenders, collectively, exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company shall select the Securities Notes and other Senior Subordinated Pari Passu Indebtedness to be purchased repurchased shall be selected on a pro rata basis but in round denominations, which in on the case basis of the Securities will be denominations of $1,000 aggregate principal amount or multiples thereofof tendered Notes and tendered Pari Passu Indebtedness. The Company shall not be required to make an Offer Upon completion of such Asset Disposition Offer, regardless of the amount of Excess Proceeds used to purchase Securities (and Notes or other Senior Subordinated Pari Passu Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Disposition Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased Excess Proceeds shall be required to surrender the Security, with an appro- priate form duly completed, to the Company reset at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holderzero.
(d) The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company or the applicable Restricted Subsidiary shall apply all Excess Proceeds to the purchase of the aggregate principal amount of Notes and, if applicable, Pari Passu Indebtedness required to be purchased pursuant to this Section 4.5 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount of Notes (and, if applicable, Pari Passu Indebtedness) has been so validly tendered and not validly withdrawn, all Notes and Pari Passu Indebtedness validly tendered and not validly withdrawn in response to the Asset Disposition Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made.
(e) The Company and any Restricted Subsidiary shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this SectionSection 4.5. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 4.5, the Company shall and such Restricted Subsidiary will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section 4.5 by virtue of its compliance with such securities laws or regulations.
Appears in 2 contracts
Samples: Indenture (Hess Midstream Partners LP), Indenture (Hess Midstream LP)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Neither the Company shall notnor the Issuer will, and shall not nor will they permit any Restricted Subsidiary toSubsidiary, directly or indirectly, to consummate any Asset Disposition unless unless:
(1) the Company Company, the Issuer or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as such Fair Market Value to be determined on the value date of all non-cash consideration), as determined in good faith by the Board of Directors, contractually agreeing to such Asset Disposition) of the shares Equity Interests and assets subject to such Asset Disposition; and
(2) at least 8075% of the consideration thereof from such Asset Disposition received by the Company, the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents.
(b) Within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, the Company, the Issuer or any Restricted Subsidiary may apply, at its option, an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(1) to repay Obligations under the Revolving Credit Agreement and to correspondingly reduce commitments with respect thereto;
(2) to repay (and, in the case of a revolving credit facility, correspondingly reduce commitments with respect thereto) Obligations under other Secured Indebtedness of the Company, the Issuer or any Restricted Subsidiary(other than any Disqualified Equity Interests or Subordinated Obligations) other than Indebtedness owed to the Company, the Issuer or a Restricted Subsidiary;
(3) to repay (and, in the case of a revolving credit facility, correspondingly reduce commitments with respect thereto) Obligations under other Indebtedness of the Company, the Issuer or any Restricted Subsidiary (other than any Disqualified Equity Interests or Subordinated Obligations) other than Indebtedness owed to the Company, the Issuer or a Restricted Subsidiary; provided that the Company shall equally and ratably reduce Obligations under the Notes as provided in Section 5 of the Notes and Sections 3.3 and 3.4 through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an Asset Disposition Offer (as defined below) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest on the amount of Notes that would otherwise be prepaid;
(4) to invest in Additional Assets or make capital expenditures in or that are used or useful in the Alcoa Corporation Business;
(5) to pay (and, in the case of a revolving credit facility, correspondingly reduce commitments with respect thereto) Obligations under Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, other than Indebtedness owed to the Company, the Issuer or another Restricted Subsidiary; or
(6) in any combination of applications described in Sections 4.7(b)(1), (2), (3), (4) or (5) above; provided that pending the final application of any such Net Available Cash in accordance with Sections 4.7(b)(1), (2), (3), (4), (5) or (6) above and 4.7(e) below, the Company, the Issuer and Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise use such Net Available Cash in any manner not prohibited by this Indenture; provided, further, that in the case of Section 4.7(b)(4), a binding commitment to invest in Additional Assets or to make such capital expenditures shall be treated as a permitted application of an amount of Net Available Cash from the date of such commitment so long as the Company, the Issuer or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such amount of Net Available Cash will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before such amount of Net Available Cash is applied in connection therewith, the Company, the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination, it being understood that if a Second Commitment is in 57later cancelled or terminated for any reason before such amount of Net Available Cash is applied, then such amount of Net Available Cash shall constitute Excess Proceeds.
(ac) except Notwithstanding the foregoing, to the extent that any of or all the Net Available Cash of any Asset Dispositions by a subsidiary (x) are prohibited or delayed by applicable local law from being repatriated to the Issuer or (y) would have a material adverse Tax consequence (taking into account any foreign tax credit or other net benefit actually realized in connection with such repatriation that would not otherwise be realized), as determined by the Company in its sole discretion, the portion of such Net Available Cash so affected will not be required to be applied in compliance with this Section 4.7, and such amounts may be retained by the applicable subsidiary; provided that clause (x) of this Section 4.7(c) shall apply to such amounts so long, but only so long, as the applicable local law will not permit repatriation to the Issuer (the Company hereby agreeing to use reasonable efforts to cause the applicable subsidiary to take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation), and if such repatriation of any of such affected Net Available Cash is permitted under the applicable local law and is not subject to clause (y) of this Section 4.7(c) then such repatriation will be promptly effected and such repatriated Net Available Cash will be applied (whether or not repatriation actually occurs) in compliance with this Section 4.7; provided, further, that the aggregate amount of Net Available Cash retained pursuant to clause (y) of this Section 4.7(c) shall not exceed $250 million at any one time outstanding. The time periods set forth in this Section 4.7 shall not start until such time as the Net Available Cash may be repatriated (whether or not such repatriation actually occurs).
(d) For the purposes of Section 4.7(a)(2) and for no other purpose, the following will be deemed to be cash:
(1) any liabilities (as shown on the Company’s, the Issuer’s or such Restricted Subsidiary’s most recent balance sheet) of the Company, the Issuer or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes or the Note Guarantees, (y) Preferred Stock and (z) Disqualified Equity Interests) that are assumed by the transferee of any such assets and from which the Company, the Issuer and all such Restricted Subsidiaries or that are otherwise cancelled or terminated in connection with the transaction with such transferee, in each case for which have been validly released by all creditors in writing;
(2) the principal amount of any Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Disposition (other than intercompany debt owed to the Company, the Issuer or the Restricted Subsidiaries), to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a)Company, the following Issuer and each other Restricted Subsidiary are deemed to be cash or cash equivalents: (1) the assumption released from any guarantee of Indebtedness payment of the Company or any Restricted Subsidiary and the release principal amount of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and Disposition;
(23) securities any Designated Non-Cash Consideration received by the Company Company, the Issuer or such Restricted Subsidiary in respect of such sale, transfer, lease or other disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section 4.7(d)(3) that is at that time outstanding, not in excess of the greater of (i) $200 million and (ii) 1.0% of Consolidated Total Assets at the time of the receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(4) any securities, notes or other obligations received by the Company, the Issuer or any Restricted Subsidiary from the transferee that are promptly converted by the Company Company, the Issuer or such Restricted Subsidiary into cashcash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Disposition.
(be) In Any amount of Net Available Cash from Asset Dispositions that is not applied or invested as provided in Section 4.7(b) will be deemed to constitute “Excess Proceeds.” On the event of 366th day after an Asset Disposition, or earlier at the Company’s option, if the aggregate amount of Excess Proceeds exceeds $100 million, the Company, the Issuer or a Restricted Subsidiary will make an offer (“Asset Disposition Offer”) to all Holders and, at the Issuer’s election, to the holders of any Pari Passu Indebtedness, to purchase the maximum aggregate principal amount of Notes and any such Pari Passu Indebtedness that requires the purchase of Securities (and other Senior Subordinated Indebtedness may be purchased out of the Company) pursuant to Section 4.06(a)(3)(C)Excess Proceeds, the Company shall purchase Securities tendered pursuant to at an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal in cash in an amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, equal to 100% of the accreted value principal amount thereof), without premium, plus accrued but and unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser priceinterest, if any, as may be provided for by to but not including the terms date of such Senior Subordinated Indebtedness purchase (subject to the right of Holders of record on a record date to receive interest due on the Company) relevant interest payment date), in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c)this Indenture or the agreements governing the relevant Pari Passu Indebtedness, as applicable, in each case in denominations of $200,000 and larger integral multiples of $1,000 in excess thereof. The Company, the Issuer or such Restricted Subsidiary will commence an Asset Disposition Offer with respect to Excess Proceeds by mailing by first-class mail (or otherwise delivered in accordance with the applicable procedures of DTC) the notice required pursuant to the terms of this Indenture to the Holders at each Holder’s registered address, with a copy to the Trustee. To the extent that the aggregate amount of Notes and the relevant Pari Passu Indebtedness validly tendered and not validly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company, the Issuer or a Restricted Subsidiary may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. If the aggregate purchase price principal amount of Securities (Notes surrendered by Holders thereof and any other Senior Subordinated Pari Passu Indebtedness of the Company) tendered pursuant to the Offer surrendered by holders or lenders, collectively, exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company shall select the Securities Notes and other Senior Subordinated Pari Passu Indebtedness to be purchased repurchased shall be selected on a pro rata basis but on the basis of the aggregate principal amount of tendered Notes and tendered Pari Passu Indebtedness. Upon completion of such Asset Disposition Offer, regardless of the amount of Excess Proceeds used to purchase Notes or other Pari Passu Indebtedness pursuant to such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(f) The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company, the Issuer or the applicable Restricted Subsidiary will apply all Excess Proceeds to the purchase of the aggregate principal amount of Notes and, if applicable, Pari Passu Indebtedness required to be purchased pursuant to this Section 4.7 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount of Notes (and, if applicable, Pari Passu Indebtedness) has been so validly tendered and not validly withdrawn, all Notes and Pari Passu Indebtedness validly tendered and not validly withdrawn in round denominationsresponse to the Asset Disposition Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made under this Indenture.
(g) On or before the Asset Disposition Purchase Date, which the Company, the Issuer or the Restricted Subsidiary will, to the extent lawful, accept for payment, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions thereof validly tendered and not validly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not validly withdrawn, all Notes and Pari Passu Indebtedness so tendered and not withdrawn, in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) Notes in integral multiples of $1,000 1,000; provided that if, following the repurchase of a portion of a Note, the remaining principal amountamount of such Note outstanding immediately after such repurchase would be less than $200,000, at then the applicable purchase priceportion of such Note so repurchased shall be reduced so that the remaining principal amount of such Note outstanding immediately after such repurchase is $200,000. The notice shall specify a purchase date not less than 30 days nor more than 60 days after Company, the date Issuer or such Restricted Subsidiary will deliver, or cause to be delivered, to the Trustee the Notes so accepted and an Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof so accepted and that such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of Notes or portions thereof were accepted for payment by the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to Issuer or such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and Restricted Subsidiary in accordance with the terms of this SectionSection 4.7. A Security shall be deemed The Company, the Issuer or such Restricted Subsidiary will promptly, but in no event later than five Business Days after termination of the Asset Disposition Offer Period, mail or deliver to have been a paying agent on or before noon New York City time one Business Day prior to the Asset Disposition Purchase Date to remit to each tendering Holder an amount equal to the purchase price of the Notes so validly tendered and not properly withdrawn by such Holder and accepted by the Company, the Issuer or such Restricted Subsidiary for purchase at purchase, and, if less than all of the time Notes tendered are purchased pursuant to the Asset Disposition Offer, the Issuer will promptly issue a new Note, and the Trustee, directly upon delivery of an authentication order from the Issuer, will authenticate and mail or through an agentdeliver (or cause to be transferred by book-entry) such new Note to such Holder (it being understood that, mails or delivers payment therefor notwithstanding anything in this Indenture to the surrendering Holdercontrary, no Opinion of Counsel or Officer’s Certificate will be required for the Trustee to authenticate and mail or deliver such new Note) in a principal amount equal to any unpurchased portion of the Note surrendered (or, in the case of a registered Note, cause the principal amount of such Note to be adjusted in accordance with the applicable procedures of DTC); provided that each such new Note will be in a principal amount of $200,000 or an integral multiple of $1,000 in excess thereof. Any Note not so accepted will be promptly mailed or delivered by the Company, the Issuer or such Restricted Subsidiary to the Holder thereof. The Company, the Issuer or such Restricted Subsidiary will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date.
(dh) The Company shall Company, the Issuer and any Restricted Subsidiary will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this SectionSection 4.7. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 4.7, the Company shall Company, the Issuer and such Restricted Subsidiary will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section 4.7 by virtue of its compliance with such securities laws or regulations.
Appears in 2 contracts
Samples: Indenture (Alcoa Upstream Corp), Indenture (Alcoa Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall Parent will not, and shall will not permit the Issuer or any other Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless unless:
(1i) the Company consideration the Parent, the Issuer or such other Restricted Subsidiary receives for such Asset Disposition is not less than the fair market value of the assets disposed of as of the date of entry into binding documentation in respect of such Asset Disposition (as determined by the Parent’s Board of Directors); and
(ii) at least 75% of the consideration the Parent or such Restricted Subsidiary receives consideration at the time in respect of such Asset Disposition consists of:
(A) cash (including any Net Cash Proceeds received from the conversion within 180 days of such Asset Disposition of securities, notes or other obligations received in consideration of such Asset Disposition);
(B) Cash Equivalents;
(C) the assumption by the purchaser of (x) any liabilities recorded on the Parent’s, the Issuer’s or such other Restricted Subsidiary’s balance sheet or the notes thereto (or, if Incurred since the date of the latest balance sheet, that would be recorded on the next balance sheet) (other than Subordinated Indebtedness), as a result of which none of the Parent, the Issuer or any of the other Restricted Subsidiaries remains obligated in respect of such liabilities, or (y) Indebtedness of a Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, if the Parent, the Issuer and every other Restricted Subsidiary is released from any guarantee of such Indebtedness as a result of such Asset Disposition;
(D) Replacement Assets;
(E) any Capital Stock or assets of the kind referred to in clause (iv) or (vi) of Section 4.05(b);
(F) consideration consisting of Indebtedness of the Issuer or any Guarantor received from Persons who are not the Parent, the Issuer or any other Restricted Subsidiary, but only to the extent that such Indebtedness (i) has been extinguished by the Issuer or the applicable Guarantor, and (ii) is not Subordinated Indebtedness of the Issuer or such Guarantor;
(G) any Designated Non-Cash Consideration received by the Parent or any Restricted Subsidiary having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this covenant that is at least equal any one time outstanding, not to exceed the greater of 15% of Consolidated EBITDA and $150 million (with the fair market value of each issue of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value); or
(including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, H) any combination of the shares and assets subject to types of consideration specified in the preceding clauses (ii)(A) through (ii)(G).
(b) If the Parent, the Issuer or any other Restricted Subsidiary consummates an Asset Disposition, within 360 days (or such period as provided in clause (viii) below, if applicable) of the later of the date of consummation of such Asset Disposition; Disposition and receipt of such Net Available Cash, the Parent or its Restricted Subsidiaries may use the Net Available Cash to:
(2i) at least 80% of the consideration thereof received by the Company or such Restricted Subsidiary is in 57
(a) except to prepay, repay, purchase or redeem (including through open market purchases, voluntary tender offers or privately negotiated transactions at market prices) any Senior Indebtedness Incurred under Section 4.01(b)(i); (b) unless included in the extent preceding clause (i)(a), prepay, repay, purchase or redeem (including through open market purchases, voluntary tender offers or privately negotiated transactions at market prices) any Pari Passu Indebtedness; provided that the aggregate Net Available Cash from all Asset Dispositions which is not applied Parent, and its Restricted Subsidiaries shall be entitled to prepay, repay, purchase or redeem such Pari Passu Indebtedness that constitutes Public Debt and that has a Stated Maturity falling before the Notes’ Stated Maturity only if the Parent or the Issuer makes (at such time or in compliance with this covenant) an offer to Holders to purchase Notes, in accordance with the provisions set forth below for an Asset Disposition Offer, in such an amount as would reduce the aggregate principal amount of Notes then outstanding in the same proportion as the aggregate principal amount of such other Pari Passu Indebtedness would be reduced by such prepayments, repayments, purchases or redemptions; or (c) prepay, repay, purchase or redeem (including through open market purchases, voluntary tender offers or privately negotiated transactions at market prices) any Indebtedness of a Restricted Subsidiary of the Parent that is not a Guarantor (other than the Issuer) or any Indebtedness that is secured on assets that do not constitute Collateral (in each case, other than Subordinated Indebtedness of the Issuer or a Guarantor or Indebtedness owed to the Parent or any Restricted Subsidiary);
(ii) purchase any series of Notes pursuant to an offer to all Holders of such series of Notes, redeem (including through open market purchases, voluntary tender offers or privately negotiated transactions at market prices) any series of Notes pursuant to the redemption provisions of this Section 4.06(aIndenture or by making an Asset Disposition Offer to all Holders of the Notes (in accordance with the procedures set out below);
(iii) exceeds $10.0 million. Pending application invest in any Replacement Assets;
(iv) acquire all or substantially all of the assets of, or any Capital Stock of, another Person engaged in a Similar Business, if, after giving effect to any such acquisition of Capital Stock, such Person is or becomes a Restricted Subsidiary;
(v) make a capital expenditure;
(vi) acquire other assets (other than Capital Stock and cash or Cash Equivalents) that are used or useful in a Similar Business;
(vii) consummate any combination of the foregoing; or
(viii) enter into a binding commitment to apply the Net Available Cash pursuant to this Section 4.06(a4.05(b)(i), such Net Available Cash Section 4.05(b)(iii), Section 4.05(b)(iv), Section 4.05(b)(v) or Section 4.05(b)(vi) or a combination thereof; provided that, a binding commitment shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at treated as a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation permitted application of the Net Available Cash from the Asset Dispositions pursuant to date of such commitment until the earlier of (x) the date on which such Offer investment is being made consummated, and (Cy) the compliance 180th day following the expiration of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (oraforementioned 360-day period, if the Company investment has not been consummated by that date.
(c) The amount of such Net Available Cash not so used as set forth above constitutes “Excess Proceeds.” Pending the final application of any such Net Available Cash, the Parent or any Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise utilize such Net Available Cash in any manner that is acting not prohibited by the terms of this Indenture.
(d) On the 361st day (or the 541st day if a binding commitment as its own Paying Agentdescribed in Section 4.05(b)(viii) is entered into) after an Asset Disposition, segregate and hold in trustor such earlier time as the Issuer elects, if the aggregate amount of Excess Proceeds exceeds $60 million, the Issuer will be required within twenty (20) in Temporary Cash InvestmentsBusiness Days thereof to make an offer (“Asset Disposition Offer”) to all Holders and, maturing on the last day prior to the Purchase Date extent the Issuer elects, to all or on some holders of other outstanding Senior Indebtedness that is Pari Passu Indebtedness, to purchase the Purchase Date if funds are immediately available by open maximum principal amount of businessNotes and any such other Senior Indebtedness that may be purchased out of the Excess Proceeds, at an amount offer price, in respect of the Notes, equal to no less than 100% of the principal amount thereof plus accrued and unpaid interest, if any, to, but not including, the date of purchase. The Asset Disposition Offer Amount to in respect of Notes will be held for payment made in accordance with the provisions procedures set forth in this Indenture, in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.
(e) Upon completion of any such Asset Disposition Offer, the amount of Excess Proceeds that resulted in the requirement to make an Asset Disposition Offer shall be reset to zero (regardless of whether there are any remaining Excess Proceeds upon such completion). Upon consummation or expiration of any Asset Disposition Offer, any remaining Net Available Cash shall not be deemed Excess Proceeds and the Parent and its Restricted Subsidiaries may use such Net Available Cash for any purpose not prohibited by this SectionIndenture. If the Offer includes aggregate amount of Notes and such other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent Indebtedness validly tendered and not properly withdrawn pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the an Asset Disposition Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in exceeds the amount of Excess Proceeds, the purchase price. In Excess Proceeds shall be allocated among the event that tendering Holders of Notes and such other Senior Indebtedness pro rata based on the aggregate purchase price principal amount of Notes and such other Senior Indebtedness so tendered and not properly withdrawn. For the Securities delivered purposes of calculating the principal amount of any such Indebtedness tendered in an Asset Disposition Offer that is not denominated in U.S. dollar, such principal amount shall be converted into its U.S. Dollar Equivalent as of a date selected by the Company to Issuer that is within the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Asset Disposition Offer Period for application in accordance with this Section 4.06.
or no more than five (35) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the beginning of the Asset Disposition Offer Period. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(f) To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than the currency in which the relevant Notes are denominated, the amount thereof payable in respect of such Notes shall not exceed the net amount of funds in the currency in which such Notes are denominated that is actually received by the Issuer upon converting such portion of the Net Available Cash into such currency.
(g) The Asset Disposition Offer, insofar as it relates to the Notes, will remain open for a period of not less than five (5) Business Days following its commencement (the “Asset Disposition Offer Period”). No later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date. Holders shall be entitled to withdraw their election if ”), the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, Issuer will purchase the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount Notes and, to the unpurchased portion of extent it elects, Senior Indebtedness required to be repaid or purchased by it pursuant to such offer (the Securities surrendered“Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Senior Indebtedness that is Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.
(4h) At The Parent and its Restricted Subsidiaries may satisfy the time the Company delivers Securities foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the Trustee which are expiration of the relevant 360 days (or such longer period provided above) respect to be accepted for purchase, all or part of the Company shall also deliver an Officers' Certificate stating that such Securities are Net Available Cash in advance of being required to be accepted do so by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering HolderIndenture.
(di) The Company shall Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this SectionIndenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 4.05, the Company shall Issuer will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance such compliance.
(j) Except as otherwise provided in Section 9.01, the provisions of this Indenture relating to the Issuer’s obligation to make an Asset Disposition Offer may be waived or modified with the consent of Holders of a majority in outstanding principal amount of the Notes (with such securities laws or regulationsconsent, for the avoidance of doubt, to be considered effective if the aggregate principal amount of the Notes of consenting Holders represents a majority of the aggregate outstanding principal amount of the Notes as a whole and without regard to the level of consent obtained among Holders of each constituent series of Notes).
Appears in 2 contracts
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless: (1i) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets property or asset subject to such Asset Disposition; (2ii) prior to the Initial Maturity Date, 100%, and from and after the Initial Maturity Date, at least 80% of the consideration thereof from such Asset Disposition received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in 57the form of cash or Cash Equivalents and 100% of the Net Available Cash therefrom is deposited directly by the Company (or the Subsidiary that owned the sold assets, as the case may be) into a segregated Collateral Account, under the sole control of the Administrative Agent, that includes only proceeds from Asset Dispositions and interest earned thereon (“Collateral Account”) and is free from all other Liens, all on terms and pursuant to arrangements reasonably satisfactory to the Administrative Agent in its reasonable determination (which may include, at the Administrative Agent’s reasonable request, customary officer’s certificates and opinions of counsel and shall include release provisions requiring the Administrative Agent to release deposits in the Collateral Account as requested to permit the Company or its Subsidiaries to apply such Net Available Cash in the manner described in the immediately succeeding paragraph below, unless the Administrative Agent has received written notice that an Event of Default has occurred and is continuing); and (iii) the remaining consideration from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon with its acquisition pledged as Collateral to secure the Loans and the Guarantees under the Guarantee and Collateral Agreement on a first-priority basis.
(ab) except An amount equal to 100% of the Net Available Cash deposited into the Collateral Account from any Asset Dispositions may be withdrawn by the Company (or such Subsidiary, as the case may be) to be invested by the Company or such Subsidiary in Additional Assets constituting Collateral to be owned by the Company or a Subsidiary Guarantor within 365 days of the date of such Asset Disposition and the Administrative Agent shall promptly be granted a perfected first-priority security interest on all such Additional Assets as Collateral under the Security Documents to secure the Loans and the Guarantees under the Guarantee and Collateral Agreement on terms and pursuant to arrangements reasonably satisfactory to the extent that Administrative Agent in its reasonable determination (which may include, at the aggregate Administrative Agent’s reasonable request, customary officer’s certificates and legal opinions.
(c) In addition, upon receipt of any Net Available Cash from all a Casualty Event, the Company (or the Subsidiary that owned those assets, as the case may be) shall treat such Net Available Cash as if it were proceeds of an Asset Dispositions which is not applied Disposition and apply such proceeds in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a6.4(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, If on or prior to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionInitial Maturity Date, the Company shall comply with determine that it will not or does not intend to use any amount then deposited in the applicable securities laws and regulations and shall not be deemed Collateral Account to invest, or to have breached its obligations under this a Subsidiary invest, in Additional Assets, the Company shall apply such amount toward the prepayment of the Loans in accordance with Section by virtue of its compliance with such securities laws or regulations2.5.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at (both cash and non cash) equal to not less than the time Fair Market Value (such Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, Disposition) of the shares and assets subject to such Asset Disposition; ;
(2) at least 8075% of the consideration thereof from such Asset Disposition received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in 57the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:
(a) except to any liabilities (as shown on the extent that face of the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(aCompany’s or such Restricted Subsidiary’s then most recent balance sheet), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the release transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and further liability;
(2b) securities any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from the such transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness) to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or any Restricted Subsidiary, as the case may be, elects, to invest in Replacement Assets within the applicable Application Period; and
(b) In second, to the event extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and or such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser priceearlier date, if any, as may the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be provided for applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Subordinated Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Company) Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (including prorating provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the event case of over-subscription) set forth Pari Passu Notes, in Section 4.06(c)such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate purchase price principal amount of Securities (Notes and any other Senior Subordinated Indebtedness of the Company) Pari Passu Notes validly tendered and not properly withdrawn pursuant to the an Asset Disposition Offer exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Trustee, in accordance with the applicable procedures of the Depository, shall select the Securities Notes and other Senior Subordinated Indebtedness the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis but in round denominations, which in on the case basis of the Securities will be denominations of $1,000 aggregate principal amount or multiples thereofof such tendered Notes and Pari Passu Notes. The Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company shall not be will purchase the principal amount of Notes and Pari Passu Notes required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) be purchased pursuant to this Section 4.06 4.15 (the “Asset Disposition Offer Amount”) or, if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an the Asset Disposition Offer is required with respect Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after Disposition Offer. Upon the Company becomes obligated to make commencement of an Asset Disposition Offer, the Company shall deliver send, by first class mail, a notice to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase priceits registered address. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to enable such Holder to tender Securities Notes pursuant to the Asset Disposition Offer. Any Asset Disposition Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Disposition Offer, together with shall state:
(1) that the information contained in clause (3).Asset Disposition Offer is being made pursuant to this Section 4.15;
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Disposition Offer Amount to be held for payment in accordance with and the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Asset Disposition Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Security Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the SecurityNote, with an appro- priate the form duly entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three Business Days prior to days before the Asset Disposition Purchase Date. ;
(7) that Holders shall be entitled to withdraw their election if the Trustee Company, the Depository or the Company receives Paying Agent, as the case may be, receives, not later than one Business Day the second business day prior to the Asset Disposition Purchase Date, a telex, facsimile transmission or letter notice setting forth the name of the Holder, the principal amount of the Security which was Note the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security Note purchased. ;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) that Holders whose Securities are Notes were purchased only in part shall be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities surrendered.Notes surrendered (or transferred by book-entry transfer); and
(410) At all other procedures, if any, determined by the time Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Company delivers Securities will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of such Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' ’ Certificate stating that such Securities are to be Notes or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this SectionSection 4.15 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. A Security The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after termination of the Asset Disposition Offer Period) mail or deliver to each tendering Holder of Notes or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Notes or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Note not so accepted will be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have been accepted sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purchase at purposes of this Section 4.15, and shall comply with the time provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Trustee, directly Fair Market Value of such properties and assets of the Company or through an agent, mails or delivers payment therefor its Restricted Subsidiaries deemed to the surrendering Holder.
(d) be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company shall will comply, to the extent applicable, with the requirements of Section Rule 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this SectionSection 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 4.15, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulationsany conflict.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time (including by way of such Asset Disposition relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (including as such fair market value to be determined on the value date of all non-cash considerationcontractually agreeing to such Asset Disposition), as determined in good faith by the Board of DirectorsDirectors of the Company, of the shares and assets subject to such Asset Disposition; Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap);
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 8075% of the consideration thereof from such Asset Disposition (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in 57the form of cash or Cash Equivalents; and
(a3) except an amount equal to 100% of the extent that the aggregate Net Available Cash from all such Asset Dispositions which Disposition is not applied by the Company or any Restricted Subsidiary, as the case may be:
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness), within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; (i) to prepay, repay or purchase any Indebtedness of a Non-Guarantor, Indebtedness that is secured by a Lien or Permitted Funding Indebtedness (in each case, other than Indebtedness owed to the Company or any Restricted Subsidiary); provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (i), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be reduced in an amount equal to the principal amount so prepaid, repaid or purchased; or (ii) to prepay, repay or purchase Pari Passu Indebtedness; provided further that, to the extent the Company redeems, repays or repurchases Pari Passu Indebtedness pursuant to this clause (ii) the Company shall equally and ratably reduce obligations under the Notes as provided under Section 5.7, through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with this Section 4.06(athe procedures set forth below for an Asset Disposition Offer) exceeds $10.0 million. Pending application to all Holders to purchase their Notes at 100% of Net Available Cash pursuant the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; or
(ii) to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of extent the Company or any Restricted Subsidiary elects, to invest in or commit to invest in Additional Assets (including Financeable Assets and by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary) within 365 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Company that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day; provided that, pending the final application of any such Net Available Cash in accordance with clause (i) or clause (ii) in this Section 3.5(a)(3), the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness (including Permitted Funding Indebtedness) or otherwise use such Net Available Cash in any manner not prohibited by this Indenture.
(b) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in Section 3.5(a) will be deemed to constitute “Excess Proceeds” under this Indenture. On the 366th day after the later of an Asset Disposition or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds under this Indenture exceeds $50.0 million, the Company will within 10 Business Days be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes issued under this Indenture and, to the extent the Company elects, to all holders of other outstanding Pari Passu Indebtedness, to purchase the maximum principal amount of Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to 100% of the principal amount of the Notes plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. The Company shall deliver notice of such Asset Disposition Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the Notes Register or otherwise in accordance with the procedures of DTC, describing the transaction or transactions that constitute the Asset Disposition and offering to repurchase the Notes for the specified purchase price on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by this Indenture and described in such notice.
(c) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Excess Proceeds shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the respective aggregate principal amounts of tendered Notes of the relevant series and Pari Passu Indebtedness in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(d) To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than U.S. dollars, the amount thereof payable in respect of the Notes shall not exceed the net amount of funds in U.S. dollars that is actually received by the Company upon converting such portion into U.S. dollars.
(e) For the purposes of Section 3.5(a)(2) hereof, the following will be deemed to be cash:
(i) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Company or a Restricted Subsidiary (other than Subordinated Indebtedness of the Company or a Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition and Disposition;
(2ii) securities securities, notes or other obligations received by the Company or any Restricted Subsidiary of the Company from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents within 180 days following the closing of such Asset Disposition;
(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition;
(iv) consideration consisting of Indebtedness of the Company (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company or any Restricted Subsidiary; and
(v) any Designated Non-Cash Consideration received by the Company or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section 3.5 that is at that time outstanding, not to exceed the greater of $70.0 million and 2.5% of Total Assets (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(bf) In Upon the event commencement of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C)Offer, the Company shall purchase Securities tendered pursuant send, or cause to an offer be sent, electronically or by first class mail, a notice to the Company for the Securities (Trustee and such other Senior Subordinated Indebtedness of the Company) (the "Offer") to each Holder at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) its registered address or otherwise in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase priceDTC. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to enable such Holder to tender Securities Notes pursuant to the Asset Disposition Offer. Any Asset Disposition Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Disposition Offer, together with shall state:
(1) that the information contained in clause Asset Disposition Offer is being made pursuant to this Section 3.5 and that, to the extent lawful, all Notes tendered and not withdrawn shall be accepted for payment (3unless prorated).;
(2) Not the Asset Disposition payment amount, the Asset Disposition offered price, and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and not later than 60 days from the date upon which written notice of an Offer such notices is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer mailed (the "Offer Amount"“Asset Sale Payment Date”), including information as to ;
(3) that any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee Notes not tendered or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held accepted for payment shall continue to accrue interest in accordance with the provisions of this Section. If terms thereof;
(4) that, unless the Offer includes other Senior Subordinated IndebtednessCompany defaults in making such payment, the deposit described in the preceding sentence may be made with any other paying agent Notes accepted for payment pursuant to arrangements satisfactory the Asset Disposition Offer shall cease to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to accrue interest on and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.Asset Sale Payment Date;
(35) that Holders electing to have a Security any Notes purchased pursuant to any Asset Disposition Offer shall be required to surrender the SecurityNotes, with an appro- priate the form duly entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Company Paying Agent at the address specified in the notice at least three Business Days prior to before the Purchase Asset Sale Payment Date. ;
(6) that Holders shall be entitled to withdraw their election if the Trustee or the Company receives Paying Agent receives, not later than one two Business Day Days prior to the Purchase Asset Sale Payment Date, a telex, facsimile transmission or letter notice setting forth the name of the Holder, the principal amount of the Security which was Note the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his its election to have such Security Note purchased. ;
(7) that if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition payment amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof shall be purchased); and
(8) that Holders whose Securities are Notes were purchased only in part shall will be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities surrenderedNotes surrendered (or transferred by book-entry).
(4g) At If the time Asset Sale Payment Date is on or after a record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Disposition Offer.
(h) On the Asset Sale Payment Date, the Company delivers Securities will, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Asset Disposition Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Asset Disposition payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be delivered, to the Trustee which are for cancellation the Notes so accepted together with an Officer’s Certificate to be accepted for purchase, the Company shall also deliver an Officers' Certificate Trustee stating that such Securities are Notes or portions thereof have been tendered to be accepted and purchased by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering HolderCompany.
(di) The Company shall will comply, to the extent applicable, with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the purchase repurchase of Securities Notes pursuant to this SectionSection 3.5. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this SectionIndenture, the Company shall will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulationsthereof.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless Sale unless:
(1) the Company or such Restricted Subsidiary (x) receives consideration at the time of such Asset Disposition Sale at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, Fair Market Value of the shares and assets subject to such Asset DispositionSale (which Fair Market Value shall be determined by the Board of Directors for any transaction (or series of transactions) involving consideration in excess of $15,000,000) and (y) the consideration received consists of cash, Cash Equivalents or other non-cash consideration, the Fair Market Value of which and basis of valuation is set forth in an Officer's Certificate; (2) PROVIDED, HOWEVER, if at least 8075% of the consideration thereof received by the Company or such Restricted Subsidiary is in 57
(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with an Asset Sale is in the form of cash or Cash Equivalents, no such Asset Disposition Officer's Certificate shall be required; and (2) securities PROVIDED FURTHER, HOWEVER, that any securities, notes or other obligations received by the Company or any a Restricted Subsidiary from the transferee such transfers that are promptly converted within 90 days of receipt thereof by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents (to the extent so received), shall be deemed to be cash or Cash Equivalents for purposes of this provision AND that the amount of any Indebtedness of the Company or such Restricted Subsidiary (other than Subordinated Obligations) that is actually assumed by the transferee in such Asset Sale and from which the Company or such Restricted Subsidiary is fully and unconditionally released shall be deemed to be cash for purposes of determining the percentage of cash consideration received by the Company or such Restricted Subsidiary;
(2) an amount equal to 100% of the Net Available Cash from such Asset Sale is applied by the Company (or such Restricted Subsidiary, as the case may be) at its election within 270 days from the date of such Asset Sale:
(A) to prepay or repay Senior Indebtedness and permanently reduce the commitments, if any, with respect thereto; or
(i) to make an investment in properties or assets that replace the properties or assets that were the subject of such Asset Sale or in properties or assets that will be used in a Related Business or (ii) to acquire the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock; PROVIDED that such Person is, at the time it becomes a Restricted Subsidiary, engaged in a Related Business; PROVIDED FURTHER that, in the case of items (i) and (ii), the Company may elect to deem such an investment or acquisition made within 180 days prior to such Asset Sale to have been made with Net Available Cash resulting from such Asset Sale. In determining whether an investment or acquisition of the type referred to in (i) and (ii) above was made within the applicable time limits, such investment or acquisition shall be deemed to have been made, at the election of the Company, either on the date the Company or Restricted Subsidiary actually made the investment or acquisition OR the date the Company or Restricted Subsidiary executed a binding commitment to consummate such investment or acquisition and the closing of such investment or acquisition occurs within 90 days of the date such commitment is executed.
(b) Any Net Available Cash not applied as provided in clause (2) of paragraph (a) above will be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10 million, the Company will be required to make an offer to all Holders (an "Asset Sale Offer") to purchase, on a pro rata basis, the principal amount of Notes equal in amount to the Excess Proceeds (and not just the amount thereof that exceeds $10 million) (the "Asset Sale Offer Amount"), at a purchase price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon to the date of purchase (subject to the right of each Holder of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture, and in accordance with the following standards:
(1) If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1.00 or integral multiples thereof shall be purchased.
(2) If the aggregate principal amount of Notes tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be reset to zero, subject to any subsequent Asset Sale.
(c) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Disposition that requires Sale. In addition, the purchase Fair Market Value of Securities such properties and assets of Company or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant.
(d) If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof shall be applied in accordance with this covenant.
(e) Each Asset Sale Offer will be mailed to the record Holders as shown on the register of Holders within 30 days following the date the amount of Excess Proceeds exceeded $10 million, with a copy to the Trustee, and shall comply with the procedures set forth herein. Upon receiving notice of the Asset Sale Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1.00 in exchange for cash. To the extent Holders of Notes and holders of other Senior Subordinated Indebtedness, if any, which are or is the subject of an Asset Sale Offer properly tender Notes or such other Senior Subordinated Indebtedness in an aggregate amount exceeding the amount of the Company) pursuant to Section 4.06(a)(3)(C)unapplied Excess Proceeds, the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (Notes of tendering Holders and such other Senior Subordinated Indebtedness of the Companytendering holders will be purchased on a PRO RATA basis (based on amounts tendered).
(f) (the "Offer") at Upon surrender and cancellation of a purchase price of 100% of their principal amount (or, Certificated Note that is purchased in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchasepart, the Company shall select promptly issue and the Securities Trustee shall authenticate and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holdersurrendering Holder of such Certificated Note, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities Certificated Note equal in principal amount to the unpurchased portion of the Securities surrenderedsuch surrendered Certificated Note; PROVIDED that each such new Certificated Note shall be in a principal amount of $1.00 or an integral multiple thereof.
(4g) At Upon surrender of a Global Note that is purchased in part, the time the Company delivers Securities Paying Agent shall forward such Global Note to the Trustee which are who shall make a notation on Schedule A thereof to be accepted for purchasereduce the principal amount of such Global Note, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and as provided in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering HolderSection 2.05(c) hereof.
(dh) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this SectionSection 4.11. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.11 by virtue of its compliance with such securities laws or regulationsthereof.
Appears in 1 contract
Samples: Indenture (Paragon Trade Brands Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall SPV Borrower, the US SPV Borrower and Ziggo Secured Finance II B.V. will not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any SPV Asset Sale. 59836545_7
(b) The Company, UPC NL Holdco and an Affiliate Covenant Party will not, and will not permit any of the Restricted Subsidiaries to, make any Asset Disposition unless unless:
(1) the Company Company, UPC NL Holdco, an Affiliate Covenant Party or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time (including by way of such Asset Disposition relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors or senior management of the Company (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; ;
(2) unless the Asset Disposition is a Permitted Asset Swap, at least 8075% of the consideration thereof from such Asset Disposition (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness) received by the Company Company, UPC NL Holdco, an Affiliate Covenant Party or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company, UPC NL Holdco, an Affiliate Covenant Party or such Restricted Subsidiary, as the case may be:
(A) to the extent the Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness), to prepay, repay or purchase Senior Indebtedness of the Company, UPC NL Holdco, an Affiliate Covenant Party or any other Covenant Party (including the Proceeds Loan), or Indebtedness of a Restricted Subsidiary that is not a Covenant Party (in each case other than Indebtedness owed to the Company, UPC NL Holdco, an Affiliate Covenant Party or an Affiliate of the Company) within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (a), the Company, UPC NL Holdco, an Affiliate Covenant Party such Covenant Party or such Restricted Subsidiary is will retire such Indebtedness and will cause the related commitment (if any) (except in 57the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; or
(aB) except to the extent the Company, UPC NL Holdco, an Affiliate Covenant Party or such Restricted Subsidiary elects to invest in or commit to invest in Additional Assets within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive agreement or a commitment approved by the Board of Directors or senior management of the Company that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 6 months of such 365th day; 59836545_7 provided that pending the final application of any such Net Available Cash in accordance with clause (A) or clause (B) of this Section 4.10(b)(3), the Company, UPC NL Holdco, an Affiliate Covenant Party and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Agreement.
(c) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied as provided in Section 4.10(b)(3) will be deemed to constitute “Excess Proceeds”.
(d) To the extent that the Company, UPC NL Holdco or an Affiliate Covenant Party is required pursuant to the terms of the Indentures (or any similar terms in an instrument or agreement governing Senior Indebtedness other than the Finance Documents) to make an offer to redeem or prepay the Indebtedness thereunder (an “Excess Proceeds Redemption Offer”), then the Company, UPC NL Holdco or an Affiliate Covenant Party shall include the Outstandings under the Facilities in such offer to prepay (and shall provide notice of such offer to the Facility Agent), such that a portion of the Excess Proceeds (the “Prepayment Amount”) that is equivalent to the proportion that the aggregate amount of the Outstandings under the Facilities bears to the aggregate principal amount of other Senior Indebtedness is available to be applied and is so applied in prepayment of the Outstandings plus accrued and unpaid interest owed to each Lender under the Facilities (to the extent that such Lender accepts any such offer of prepayment).
(e) To the aggregate Net Available Cash from all Asset Dispositions which extent that the Company, UPC NL Holdco or an Affiliate Covenant Party is not required to make an Excess Proceeds Redemption Offer, the Company, UPC NL Holdco or an Affiliate Covenant Party shall procure that the Excess Proceeds are applied in accordance prepayment of the Outstandings plus accrued and unpaid interest under one or more Facilities selected by the Company.
(f) Following compliance with this Section 4.06(athe requirements of paragraph (d) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(aand (e), such Net Available Cash shall be invested the Company may use any remaining Excess Proceeds for general corporate purposes in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. any manner not prohibited by this Agreement.
(g) For the purposes of this Section 4.06(a)4.10, the following are will be deemed to be cash or cash equivalents: cash:
(1) the assumption by the transferee of Indebtedness (other than Subordinated Obligations) of the Company Company, UPC NL Holdco or any an Affiliate Covenant Party or Indebtedness of a Restricted Subsidiary and the release of the Company Company, UPC NL Holdco, an Affiliate Covenant Party or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with Section 4.10(b)(3)(A));
(2) securities securities, notes or other obligations received by the Company Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary from the transferee that are promptly converted convertible by the Company Company, UPC NL Holdco, an Affiliate Covenant Party or such Restricted Subsidiary into cash.cash or Cash Equivalents within 180 days following the closing of such Asset Disposition; 59836545_7
(b3) In Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the event extent that the Company, UPC NL Holdco, an Affiliate Covenant Party and each other Restricted Subsidiary are released from any guarantee of an payment of the principal amount of such Indebtedness in connection with such Asset Disposition that requires the purchase Disposition;
(4) consideration consisting of Securities (and other Senior Subordinated Indebtedness of the Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary;
(5) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer any Designated Non-Cash Consideration received by the Company for the Securities (and Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary in such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100Asset Dispositions having an aggregate fair market value not to exceed 25.0% of the accreted value thereof), without premium, plus accrued but unpaid interest consideration from such Asset Disposition (or, in respect of excluding any consideration received from such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) Asset Disposition in accordance with clauses (1) to (4) of Section 4.10(g)) (with the procedures fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(including prorating 6) in the event addition to any Designated Non-Cash Consideration received pursuant to clause (5) of overSection 4.10(g), Designated Non-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of Cash Consideration received by the Company) tendered pursuant to the Offer exceeds the Net Available , UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, taken together with all other Designated Non-Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) Consideration received pursuant to this Section 4.06 if clause (6) that is at that time outstanding, not to exceed the Net Available Cash available therefor is less than $10.0 greater of €120.0 million and 5.0% of Total Assets (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice fair market value of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount each item of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Designated Non-Cash from the Asset Dispositions pursuant to which such Offer is Consideration being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase measured at the time the Trustee, directly or through an agent, mails or delivers payment therefor received and without giving effect to the surrendering Holdersubsequent changes in value).
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Additional Facility C2 Accession Deed (Liberty Global PLC)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, In the event and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; (2) at least 80% of the consideration thereof received by the Company or such Restricted Subsidiary is in 57
(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2) securities received by the Company or any Restricted Subsidiary from one or more Asset Dispositions occurring on or after the transferee that are promptly converted by Issue Date in any period of 12 consecutive months exceeds 15% of Adjusted Consolidated Net Tangible Assets as of the beginning of such 12-month period, then the Company shall (i) within 180 days (in the case of (A) below) or 18 months (in the case of (B) below) after the date such Net Available Cash so received exceeds such 15% of Adjusted Consolidated Net Tangible Assets (A) apply an amount equal to such excess Net Available Cash to repay Senior Indebtedness of the Company or such a Subsidiary Guarantor or Indebtedness of a Restricted Subsidiary into cashthat is not a Subsidiary Guarantor, in each case owing to a Person other than the Company or any Affiliate of the Company or (B) invest an equal amount, or the amount not so applied pursuant to clause (A), in Additional Assets or Permitted Business Investments or (ii) apply such excess Net Available Cash (to the extent not applied pursuant to clause (i)) as provided in Section 4.07(b). The amount of such excess Net Available Cash required to be applied during the applicable period and not applied as so required by the end of such period shall constitute "Excess Proceeds."
(bii) In The Company shall commence any Excess Proceeds Offer with respect to the event of an Asset Disposition Securities by mailing a notice to the Trustee and each Holder stating: (A) that requires the Excess Proceeds Offer is being made pursuant to this Section 4.07 and that all Securities validly tendered will be accepted for payment on a pro rata basis; (B) the purchase price and the date of Securities purchase (and other Senior Subordinated Indebtedness of which shall be a Business Day no earlier than 30 days nor later than 60 days from the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and date such other Senior Subordinated Indebtedness of the Companynotice is mailed) (the "OfferExcess Proceeds Payment Date"); (C) at a purchase price of 100% of their principal amount that any Security not tendered will continue to accrue interest pursuant to its terms; (orD) that, unless the Company defaults in the event such other Senior Subordinated Indebtedness payment of the Company was issued with significant original issue discountExcess Proceeds Payment, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided any Security accepted for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered payment pursuant to the Excess Proceeds Offer exceeds the Net Available Cash allotted shall cease to their purchase, the Company shall select the Securities accrue interest on and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating Excess Proceeds Payment Date; (E) that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall pursuant to the Excess Proceeds Offer will be required to surrender the Security, together with an appro- priate the form duly entitled "Option of Holder to Elect Purchase" on the reverse side of the Security completed, to the Company Paying Agent at the address specified in the notice at least three Business Days prior to the Purchase close of business on the Business Day immediately preceding the Excess Proceeds Payment Date. ; (F) that Holders shall will be entitled to withdraw their election if the Trustee or the Company receives Paying Agent receives, not later than one the close of business on the third Business Day prior to immediately preceding the Purchase Excess Proceeds Payment Date, a telextelegram, facsimile transmission or letter setting forth the name of the such Holder, the principal amount of the Security which was Securities delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security Securities purchased. ; and (G) that Holders whose Securities are being purchased only in part shall will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered; provided, however, that each Security purchased and each new Security issued shall be in a principal amount of $1,000 or integral multiples thereof.
(4iii) At mail to the time Holders of Securities so accepted payment in an amount equal to the purchase price, and the Trustee shall promptly authenticate and mail to such Holders a new Security equal in principal amount to any unpurchased portion of the Security surrendered; provided, however, that each Security purchased and each new Security issued shall be in a principal amount of $1,000 or integral multiples thereof. The Company will publicly announce the results of the Excess Proceeds Offer as soon as practicable after the Excess Proceeds Payment Date. For purposes of this Section 4.07, the Trustee shall act as the Paying Agent.
(c) In the event of the transfer of substantially all (but not all) the property and assets of the Company delivers Securities as an entirety to the Trustee which are to be accepted for purchasea Person in a transaction permitted by Section 5.01, the Successor Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted sold the properties and assets of the Company not so transferred for purchase at purposes of this Section 4.07, and shall comply with the time provisions of this Section 4.07 with respect to such deemed sale as if it were an Asset Disposition and the Trustee, directly or through Successor Company shall be deemed to have received Net Available Cash in an agent, mails or delivers payment therefor amount equal to the surrendering Holderfair market value (as determined in good faith by the Board of Directors) of the properties and assets not so transferred or sold.
(d) In the event of an Asset Disposition by the Company or any Restricted Subsidiary that consists of a sale of hydrocarbons and results in Production Payments, the Company or such Restricted Subsidiary shall apply an amount equal to the Net Available Cash received by the Company or such Restricted Subsidiary to (i) reduce Senior Indebtedness of the Company or a Subsidiary Guarantor or Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, in each case owing to a Person other than the Company or any Affiliate of the Company, within 180 days after the date such Net Available Cash is so received, or (ii) invest in Additional Assets or Permitted Business Investments within 18 months after the date such Net Available Cash is so received.
(e) The Company shall will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations thereunder in connection with the purchase of event that such Excess Proceeds are received by the Company under this Section 4.07 and the Company is required to repurchase Securities pursuant to this Sectionas described above. To the extent that the provisions of any securities 66 57 laws or regulations conflict with the provisions of this SectionSection 4.07, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.07 by virtue of its compliance with such securities laws or regulationsthereof.
Appears in 1 contract
Samples: Indenture (Denbury Management Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate any an Asset Disposition unless Sale unless:
(1) the Company (or such the Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such the Asset Disposition Sale at least equal to the fair market value Fair Market Value (including measured as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject date of the definitive agreement with respect to such Asset DispositionSale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) either (x) at least 8075% of the consideration thereof therefor received by the Company or such Restricted Subsidiary is in 57the form of cash or Cash Equivalents or a combination thereof or (y) the Fair Market Value of the aggregate of all consideration other than cash or Cash Equivalents for all Asset Sales since the Issue Date would not exceed 5% of Consolidated Tangible Assets of the Company after giving effect to such Asset Sales; provided that any of the following items shall be deemed to be cash and Cash Equivalents for the purposes of this clause (2):
(a) other than with respect to an Asset Sale of Collateral, the assumption or forgiveness of any liabilities (as shown on the Company’s or the Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to Notes issued under this Indenture or any Subsidiary Guarantee) by the transferee of any such assets pursuant to a novation or other release or repurchase agreement that releases the Company or the Restricted Subsidiary from further liability;
(b) any securities, Notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the Restricted Subsidiary into cash or Cash Equivalents within 180 days following their receipt (to the extent of cash or Cash Equivalents received); and
(c) other than with respect to an Asset Sale of Collateral, any stock or assets that constitute Replacement Assets; and
(3) the Net Proceeds from any such Asset Sale of Collateral is paid directly by the purchaser thereof to the Collateral Agent to be held in a Collateral Account for application in accordance with this covenant. Notwithstanding the foregoing provisions of the above paragraph, the Company and its Restricted Subsidiaries will not be required to cause any Net Proceeds to be held in a Collateral Account in accordance with clause (3) of the above paragraph except to the extent that the aggregate Net Available Cash Proceeds from all Asset Dispositions which is not applied Sales of Collateral that would then be held in a Collateral Account exceed $15.0 million.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale or, if the Company has entered into a binding commitment or commitments with respect to any of the actions described in clauses (1)(b) or (2)(a)-(d) below, within the later of (x) 360 days after the receipt of any Net Proceeds from an Asset Sale or (y) 180 days after the entering into of such commitment or commitments, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1) with respect to Asset Sales of Collateral,
(a) to repay, redeem, repurchase or otherwise retire the Notes or any other Priority Lien Debt (or any combination thereof); provided that if the Company or any Restricted Subsidiary shall so repay, redeem or reduce any Priority Lien Debt other than the Notes, the Company or such Restricted Subsidiary will redeem or equally and ratably repurchase (or offer to repurchase) the Notes as provided either, at the Company’s option, under “—Optional Redemption,” through open-market purchases (to the extent such purchases are at a purchase price at or above 100% of the principal amount thereof plus accrued but unpaid interest, if any) or by making an offer (in accordance with this Section 4.06(athe procedures set forth below for an Asset Sale Offer (as defined below)) exceeds $10.0 million. Pending application to all Holders to purchase their Notes at 100% of Net Available Cash pursuant the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid to this Section 4.06(a)the date of such repurchases; or
(b) to invest in Replacement Assets that would constitute Collateral; and
(2) with respect to Asset Sales other than an Asset Sale of Collateral,
(a) to acquire all or substantially all of the properties or assets of a Person primarily engaged in a Permitted Business if, as a result of such acquisition, such Net Available Cash shall Person becomes a Restricted Subsidiary of the Company;
(b) to acquire any Capital Stock of a Person operating a Permitted Business if, after giving effect to such acquisition, such Person operating a Permitted Business is or becomes a Restricted Subsidiary of the Company;
(c) to make capital expenditures in respect of the Company’s or its Restricted Subsidiaries’ Permitted Business or make an Investment in Replacement Assets;
(d) to acquire other assets that are used or useful in a Permitted Business or make an Investment in assets that will be invested used or useful in Temporary Cash Investments a Permitted Business; or
(e) to repay or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of retire Indebtedness of the Company or any Restricted Subsidiary and the release (other than subordinated Indebtedness or Indebtedness owed to an Affiliate of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cashCompany).
(bc) In Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 3.5(b) above shall be deemed to constitute “Excess Proceeds.” Within 10 business days after the event aggregate amount of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of Excess Proceeds exceeds $20.0 million, or earlier at the Company) pursuant to Section 4.06(a)(3)(C)’s option, the Company shall purchase Securities tendered pursuant will be required to make an offer by to the Company for Holders of Notes issued thereunder and the Securities holders of any other Priority Lien Debt that is subject to requirements with respect to the application of net proceeds from asset sales that are substantially similar to those contained in this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis (with the Excess Proceeds prorated between the Holders of the Notes and such holders of such other Priority Lien Debt based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes and such other Senior Subordinated Indebtedness Priority Lien Debt that may be purchased or prepaid, as applicable, out of the Company) (the "Offer") prorated Excess Proceeds, at a purchase an offer price of 100% of their principal in cash in an amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, equal to 100% of the accreted value thereof), without premium, principal amount thereof plus accrued but and unpaid interest (orthereon to, in respect but not including, the date of such other Senior Subordinated Indebtednesspurchase, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c)below. To the extent that the aggregate principal amount of the Notes and other Priority Lien Debt tendered (and electing to be redeemed or repaid, as applicable) pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Proceeds for general corporate purposes and any other purpose not prohibited by this Indenture. If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness principal amount of the Company) tendered pursuant to the Offer Notes and such other Priority Lien Debt surrendered by holders thereof exceeds the Net Available Cash allotted to their purchaseamount of the prorated Excess Proceeds, the Company shall select the Securities Notes and such other Senior Subordinated Indebtedness Priority Lien Debt to be purchased on a pro rata basis but in round denominationsbasis. Upon completion of each Asset Sale Offer, which in the case amount of the Securities will Excess Proceeds shall be denominations of $1,000 principal amount or multiples thereofreset at zero. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness will publicly announce the results of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Asset Sale Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole on or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days soon as practicable after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Sale Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Companycompleted. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, will comply with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws or and regulations thereunder to the extent such laws and regulations are applicable in connection with the purchase of Securities pursuant to this Sectionan Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this SectionSection 3.5, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section covenant by virtue of its the Company’s compliance with such securities laws or regulations.
(d) Any Asset Sale Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Sale Offer Period”). No later than five Business Days after the termination of the Asset Sale Offer Period (the “Asset Sale Purchase Date”), the Company will purchase the principal amount of Notes and such other Priority Lien Debt as may be required to be purchased pursuant to this Section 3.5 (the “Asset Sale Offer Amount”) or, if less than the Asset Sale Offer Amount has been so validly tendered and not properly withdrawn, all Notes and such other Priority Lien Debt validly tendered and not properly withdrawn in response to the Asset Sale Offer. If the Asset Sale Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no further interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer. On or before the Asset Sale Purchase Date, the Company will, to the extent lawful, accept for payment, to the extent necessary on a pro rata basis as described above (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), Notes and such other Priority Lien Debt or portions of Notes and such other Priority Lien Debt so validly tendered and not properly withdrawn pursuant to the Asset Sale Offer, or if less than the Asset Sale Offer Amount has been validly tendered and not properly withdrawn, all Notes and such other Priority Lien Debt so validly tendered and not properly withdrawn, in each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000; provided that if, following the repurchase of a portion of a Note, the remaining principal amount of such Note outstanding immediately after such repurchase would be less than $2,000, then the portion of such Note so repurchased shall be reduced such that the remaining principal amount of such Note outstanding immediately after such repurchase is $2,000. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 3.5 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing other Priority Lien Debt. The Company or the paying agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Sale Offer Period) mail (or otherwise deliver in accordance with the applicable procedures of DTC) to each tendering Holder of Notes or holder or lender of such other Priority Lien Debt, as the case may be, an amount equal to the purchase price of the Notes or such other Priority Lien Debt so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an authentication order from the Company, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess of $2,000. In addition, the Company will take any and all other actions required by the agreements governing such other Priority Lien Debt. Any Note not so accepted will be promptly mailed or delivered by the Company to the Holder thereof.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; ;
(2) at least 8075% of the consideration thereof received by the Company Issuer or such Restricted Subsidiary, as the case may be, from such Asset Disposition is in the form of cash or Cash Equivalents or Additional Assets, or any combination thereof; and
(3) except as provided in the next paragraph an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied, within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, by the Issuer or such Restricted Subsidiary, as the case may be:
(a) to the extent the Issuer or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Indebtedness of the Issuer under the Senior Secured Credit Agreement, any other Indebtedness of the Issuer or a Subsidiary Guarantor that is secured by a Lien permitted to be Incurred under this Indenture or Indebtedness (other than Disqualified Stock) of any Wholly-Owned Subsidiary that is not a Subsidiary Guarantor; provided, however, that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause (a), the Issuer or such Restricted Subsidiary is will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in 57an amount equal to the principal amount so prepaid, repaid or purchased; or
(ab) except to invest in Additional Assets; provided that pending the extent that the aggregate final application of any such Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a)4.16, the Issuer and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash shall in any manner not prohibited by this Indenture. Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in the preceding paragraph will be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) constitute “Excess Proceeds.” Not later than the assumption of Indebtedness day following the date that is one year from the later of the Company or any Restricted Subsidiary and the release date of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $15.0 million, the Issuer will be required to make an offer (“Asset Disposition Offer”) to all Holders and (2) securities received to the extent required by the Company or terms of other Pari Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the Issuer to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition (“Pari Passu Notes”), to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies that requires the purchase of Securities (and other Senior Subordinated Indebtedness may be purchased out of the Company) pursuant to Section 4.06(a)(3)(C)Excess Proceeds, the Company shall purchase Securities tendered pursuant to at an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of in cash in an amount equal to 100% of their the principal amount (or, in the event such other Senior Subordinated Pari Passu Indebtedness of the Company Issuer was issued with significant original issue discount, 100% of the accreted value thereof), without premium, ) of the Notes and Pari Passu Notes plus accrued but and unpaid interest and Liquidated Damages, if any, (or, or in respect of such other Senior Subordinated Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness Indebtedness) to the date of purchase (subject to the Company) right of holders of record on the relevant record date to receive interest due on the relevant interest payment date), in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c)this Indenture or the agreements governing the Pari Passu Notes, as applicable, in each case in denominations of at least $2,000 or an integral multiple of $1,000 thereafter. If the aggregate purchase price principal amount of Securities (Notes surrendered by holders thereof and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer Pari Passu Notes surrendered by holders or lenders, collectively, exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Trustee shall select the Securities and other Senior Subordinated Indebtedness Notes to be purchased on a pro rata basis but in round denominations, which in on the case basis of the Securities will be denominations of $1,000 aggregate principal amount or multiples thereofof tendered Notes and Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. The Company shall not be Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and Pari Passu Notes required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) be purchased pursuant to this Section 4.06 4.16 (the “Asset Disposition Offer Amount”) or, if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an the Asset Disposition Offer is required with respect Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Net Available Cash from Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related interest payment date, any subsequent Asset Disposition).
(1) Promptlyaccrued and unpaid interest and Liquidated Damages, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and in any event within 10 days after no further interest or Liquidated Damages will be payable to holders who tender Notes pursuant to the Company becomes obligated Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Issuer will, to make an the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Company shall deliver to the Trustee Asset Disposition Offer Amount has been validly tendered and sendnot properly withdrawn, by first-class mail to all Notes and Pari Passu Notes so validly tendered and not properly withdrawn, in each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either case in whole denominations of at least $2,000 or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in an integral multiples multiple of $1,000 of principal amount, at the applicable purchase pricethereafter. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes Issuer will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' ’ Certificate stating that such Securities are to be Notes or portions thereof were accepted for payment by the Company pursuant to and Issuer in accordance with the terms of this SectionSection 4.16 and, in addition, the Issuer will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. A Security shall be deemed The Issuer or the paying agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Disposition Offer Period) mail or deliver to have been each tendering Holder or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Notes or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Issuer for purchase at purchase, and the time Issuer will promptly issue a new Note, and the Trustee, directly upon delivery of an Officers’ Certificate from the Issuer, will authenticate and mail or through deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount of $2,000 or an agentintegral multiple of $1,000 thereafter. In addition, mails the Issuer will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Note not so accepted will be promptly mailed or delivers payment therefor delivered by the Issuer to the surrendering Holder.
(d) Holder thereof. The Company shall Issuer will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this SectionIndenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 4.16, the Company shall Issuer will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulations. For the purposes of clause (2) of the first paragraph of this Section 4.16, the following will be deemed to be cash:
(1) the assumption by the transferee of Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the Issuer or Indebtedness of a Restricted Subsidiary (other than Guarantor Subordinated Obligations or Disqualified Stock of any Restricted Subsidiary that is a Subsidiary Guarantor) and the release of the Issuer or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition (or in lieu of such a release, the agreement of the acquirer or its parent company to indemnify and hold the Issuer or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed Indebtedness; provided, however, that such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating), in which case the Issuer will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with clause (3)(a) of the first paragraph of this Section 4.16; and
(2) securities, notes or other obligations received by the Issuer or any Restricted Subsidiary from the transferee that are converted by the Issuer or such Restricted Subsidiary into cash within 90 days after receipt thereof. Notwithstanding the foregoing, the 75% limitation referred to in clause (2) of the first paragraph of this Section 4.16 shall be deemed satisfied with respect to any Asset Disposition in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with the foregoing provision on an after-tax basis, is equal to or greater than what the after-tax proceeds would have been had such Asset Disposition complied with the aforementioned 75% limitation. The requirement of clause (3)(b) of the first paragraph of this Section 4.16 above shall be deemed to be satisfied if an agreement (including a lease, whether a capital lease or an operating lease) committing to make the acquisitions or expenditures referred to therein is entered into by the Issuer or its Restricted Subsidiary within the specified time period and such Net Available Cash is subsequently applied in accordance with such agreement within six months following such agreement.
Appears in 1 contract
Samples: Indenture (Chaparral Energy, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value value, as determined in good faith by the Company's Board of Directors (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; ;
(2ii) at least 80% of the consideration thereof received by the Company or such Restricted Subsidiary is in 57the form of cash or Cash Equivalents; and
(aiii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, to the extent the Company or any Restricted Subsidiary elects (or is required by the terms of any senior secured indebtedness), (x) to prepay, repay or purchase senior secured Indebtedness or (y) to the investment in or acquisition of Additional Assets within 270 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; (B) second, within 270 days from the receipt of such Net Available Cash, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to make an offer to purchase Securities at 100% of their principal amount plus accrued and unpaid interest, if any, thereon; (C) third, within 90 days after the later of the application of Net Available Cash in accordance with clauses (A) and (B) and the date that is 270 days from the receipt of such Net Available Cash, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to prepay, repay or repurchase Indebtedness (other than Preferred Stock) of a Wholly-Owned Subsidiary (in each case other than Indebtedness owed to the Company); and (D) fourth, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C), to (w) the investment in or acquisition of Additional Assets, (x) the making of Temporary Cash Investments, (y) the prepayment, repayment or purchase of Indebtedness of the Company (other than Indebtedness owing to any Subsidiary of the Company) or Indebtedness of any Subsidiary (other than Indebtedness owed to the Company or any of its Subsidiaries) or to pay dividends to COMFORCE Corporation, to the extent, and only to the extent, that such dividends are used by COMFORCE Corporation to repurchase Senior Debentures which COMFORCE Corporation is obligated to repurchase pursuant to the covenant described in Section 4.8 of the Senior Indenture or (z) any other purpose otherwise permitted under this Indenture, in each case within the later of 45 days after the application of Net Available Cash in accordance with clauses (A), (B) and (C) or the date that is 360 days from the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A), (B), (C) or (D) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions, the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is are not applied in accordance with this Section 4.06(a) exceeds covenant at any time exceed $10.0 million. Pending application of The Company shall not be required to make an offer for Securities pursuant to this covenant if the Net Available Cash pursuant available therefor (after application of the proceeds as provided in clause (A)) is less than $10.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an offer is required with respect to this Section 4.06(a), such the Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtednessform any subsequent Asset Disposition). For the purposes of this Section 4.06(a)covenant, the following are will be deemed to be cash or cash equivalentscash: (1x) the assumption by the transferee of Indebtedness senior indebtedness of the Company or senior indebtedness of any Restricted Subsidiary of the Company and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness senior indebtedness in connection with such Asset Disposition (in each case the Company shall, without further action, be deemed to have applied such assumed Indebtedness in accordance with clause (A) of the preceding paragraph) and (2y) securities received by the Company or any Restricted Subsidiary of the Company from the transferee that are promptly (and in any event within 60 days) converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to clause (a)(iii)(B) of this Section 4.06(a)(3)(C)4.8, the Company shall will be required to purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but and unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser priceinterest, if any, as may be provided for by to the terms of such Senior Subordinated Indebtedness of the Company) purchase date in accordance with the procedures (including prorating in the event of over-subscriptionoversubscription) set forth in Section 4.06(c)this Indenture. If the aggregate purchase price of the Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds offer is less than the Net Available Cash allotted to their purchasethe purchase of the Securities, the Company will apply the remaining Net Available Cash in accordance with clauses (a) (iii)(C) or (D) of this Section 4.8 as permitted under this Indenture.
(c) If the Company becomes obligated to make an Offer pursuant to this Section 4.8, the Securities shall be purchased by the Company, at the option of the holder thereof, in whole or in part in integral multiples of $1,000, on a date that is not earlier than 30 days and not later than 60 days from the date the notice is given to holders, or such later date as may be necessary for the Company to comply with the requirements under the Exchange Act, subject to proration in the event the amount Net Available Cash is less than the aggregate Offered Price of all Securities tendered.
(d) Any notice pursuant to this Section 4.8 shall contain all instructions and materials necessary to enable such Securityholders to tender Securities pursuant to the offer required to be made pursuant to this Section 4.8 and shall state the following terms:
(1) that the offer is being made pursuant to this Section 4.8 and that all Securities tendered will be accepted for payment; provided, however, that if the aggregate principal amount of Securities tendered in an offer exceeds the aggregate amount of the offer, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but (with such adjustments as may be deemed appropriate by the Company so that only Securities in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount thereof shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Dispositionpurchased).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).;
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to purchase price (A) including the amount of accrued interest) and the Offer purchase date (which shall be 30 days from the date of mailing of notice of such offer, or such longer period as required by law) (the "Offer AmountProceeds Purchase Date"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.;
(3) Holders that any Securities not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor, any Security accepted for payment pursuant to the offer shall cease to accrue interest after the Proceeds Purchase Date;
(5) that Securityholders electing to have a Security purchased shall pursuant to such offer will be required to surrender the Security, with an appro- priate the form duly entitled "Option of Holder to Elect Purchase" on the reverse of the Security completed, to the Company Paying Agent at the address specified in the notice at least three Business Days prior to the close of business on the third Business Day prior to the Proceeds Purchase Date. Holders shall ;
(6) that Securityholders will be entitled to withdraw their election if the Trustee or the Company receives Paying Agent receives, not later than one five Business Day Days prior to the Proceeds Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the HolderSecurityholder, the principal amount of the Security which was Securities the Securityholder delivered for purchase by the Holder and a statement that such Holder Securityholder is withdrawing his election to have such Security purchased. Holders ; and
(7) that Securityholders whose Securities are purchased only in part shall will be issued new Securities equal in a principal amount equal to the unpurchased portion of the Securities surrendered.
(4) At ; provided that each Security purchased and each new Security issued shall be in an original principal amount of $1,000 or integral multiples thereof; On or before the time Proceeds Purchase Date, the Company delivers shall (i) accept for payment Securities or portions thereof tendered pursuant to the Trustee offer which are to be purchased in accordance with item (f)(1) above, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the purchase price plus accrued interest, if any, of all Securities to be purchased and (iii) deliver to the Trustee Securities so accepted for purchase, the Company shall also deliver together with an Officers' Certificate stating that such the Securities are to be accepted or portions thereof being purchased by the Company Company. The Paying Agent shall promptly mail to the Securityholders of Securities so accepted payment in an amount equal to the purchase price plus accrued interest, if any. For purposes of this Section 4.8, the Trustee shall act as the Paying Agent. Any amounts remaining after the purchase of the Securities pursuant to and in accordance with the terms of an offer pursuant to this Section. A Security Section 4.8 shall be deemed to have been accepted for purchase at returned by the time the Trustee, directly or through an agent, mails or delivers payment therefor Trustee to the surrendering HolderCompany.
(de) The Company shall will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities pursuant to this SectionIndenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Sectioncovenant, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulationsthereof.
Appears in 1 contract
Samples: Indenture (Comforce Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless Dis position unless
(1i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; , as such fair market value may be determined (2and shall be determined, to the extent such Asset Disposition involves aggregate consideration in excess of $10.0 million) in good faith by the Board of Directors, whose determination shall be conclusive (including as to the value of all noncash consideration),
(ii) in the case of any Asset Disposition having a fair market value of $10.0 million or more, at least 8075% of the consideration thereof therefor (excluding, in the case of an Asset Disposition of assets, any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, that are not Indebtedness) received by the Company or such Restricted Subsidiary is in 57the form of cash, and provided that this clause (ii) shall not apply to any Asset Disposition involving assets that accounted for less than two percent of Consolidated EBITDA during the period of the most recent four consecutive fiscal quarters ending prior to the date of such Asset Disposition for which consolidated financial statements of the Company are available, and
(aiii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or any Restricted Subsidiary, as the case may be) as follows:
(A) first, either (x) to the extent the Company elects (or is required by the terms of any Senior Indebtedness or Indebtedness of a Restricted Sub sidiary), to prepay, repay or purchase Senior Indebtedness or such Indebtedness of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or a Restricted Subsidiary) within 365 days after the date of such Asset Disposition, or (y) to the extent the Company or such Restricted Sub sidiary elects, to reinvest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary) within 365 days from the date of such Asset Disposition, or, if such reinvestment in Additional Assets is a project that is authorized by the Board of Directors that will take longer than such 365 days to complete, the period of time necessary to complete such project;
(B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above (such balance, the "Excess Proceeds"), to make an offer to purchase Notes and (to the extent the Company or such Restricted Subsidiary elects, or is required by the terms thereof) to purchase, redeem or repay any other Senior Subordinated Indebtedness or Guarantor Senior Subordinated Indebtedness, pursuant and subject to Section 410(b) and Section 410(c) and the agreements governing such other Indebtedness; and
(C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) above, to fund (to the extent consistent with any other applicable provision of this Indenture) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A)(x) or (B) above, the Company or such Restricted Sub sidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 410, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 410 except to the extent that the aggregate Net Available Cash from all Asset Dispositions which that is not applied in accordance with this Section 4.06(a) 410 exceeds $10.0 15.0 million. Pending application If the aggregate principal amount of Net Available Cash Notes, Senior Subordinated Indebtedness and Guarantor Senior Subordinated Indebtedness validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to this Section 4.06(a)clause (B) above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between the Notes and such Net Available Cash shall be invested Senior Subordinated Indebtedness and Guarantor Senior Subordinated Indebtedness, with the portion of the Excess Proceeds payable in respect of the Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding principal amount of the Notes and the denominator of which is the sum of the outstanding principal amount of the Notes and the outstanding principal amount of the relevant Senior Subordinated Indebtedness and Guarantor Senior Subordinated Indebtedness, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn.
(1) Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a)and Cash Equivalents, the following are deemed to be cash or cash equivalents: (12) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of such Indebtedness in connection with such Asset Disposition Disposition, (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary is released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition, (24) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cashcash and (5) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) Notes pursuant to clause (iii)(B) of paragraph (a) of this Section 4.06(a)(3)(C)410, the Company shall will be required to purchase Securities Notes tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) Notes (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but and unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by to the terms of such Senior Subordinated Indebtedness of the Company) purchase date in accordance with the procedures (including prorating in the event of over-subscriptionoversubscription) set forth in Section 4.06(c)this Indenture. If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) Notes tendered pursuant to the Offer exceeds is less than the Net Available Cash allotted to their purchasethe purchase of Notes, the remaining Net Available Cash will be available to the Company shall select the Securities and other for use in accordance with clause (iii)(B) of paragraph (a) of this Section 410 (to repay Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case or Guarantor Senior Subordinated Indebtedness) or clause (iii)(C) of the Securities will be denominations paragraph (a) of $1,000 principal amount or multiples thereofthis Section 410. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) for Notes pursuant to this Section 4.06 410 if the Net Available Cash available therefor (after application of the proceeds as provided in clause (iii)(A) of paragraph (a) of this Section 410) is less than $10.0 15.0 million for any particular Asset Disposition (which lesser amount amounts shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1c) PromptlyThe Company will, and in any event within 10 not later than 45 days after the Company becomes obligated to make an OfferOffer pursuant to this Section 410, the Company shall deliver mail a notice to each Holder with a copy to the Trustee (and send, by first-class mail to each Holder, publish notice in Luxembourg in accordance with Section 110) stating: (1) that an Asset Disposition that requires the purchase of a written notice stating portion of the Notes has occurred and that such Holder has the Holder may elect to have his Securities purchased by the Company either in whole or in part right (subject to the prorating as described in Section 4.06(bbelow) in to require the event the Offer is oversubscribed) in integral multiples Company, to purchase a portion of $1,000 of principal amount, such Holder's Notes at the applicable purchase price. The notice shall specify a purchase price in cash equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date not less of purchase (subject to Section 307); (2) the circumstances and relevant facts and financial information regarding such Asset Disposition; (3) the repurchase date (which shall be no earlier than 30 days nor more later than 60 days after from the date of such notice is mailed); (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A4) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of instructions determined by the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent consistent with this Section 410, that a Holder must follow in order to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, have its Notes purchased; and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A5) the amount of the Offer (the "Offer Amount")Offer. If, including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon upon the expiration of the period for which the Offer remains open (the "Offer Period")open, the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted aggregate principal amount of Notes surrendered by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in Holders exceeds the amount of the purchase price. In Offer, the event that Company will select the aggregate purchase price of the Securities delivered Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company to the Trustee is less than the Offer Amount applicable to the Securitiesso that only Notes in denominations of $1,000 or integral multiples thereof, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder).
(d) The Company shall will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this SectionSection 410. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 410, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section 410 by virtue of its compliance with such securities laws or regulationsthereof.
Appears in 1 contract
Samples: Indenture (Us Office Products Co)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless unless:
(1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, ) of the shares and assets subject to such Asset Disposition; and
(2ii) at least 8075% of the consideration thereof received by the Company or such Restricted Subsidiary is in 57the form of cash or Temporary Cash Investments. Within 365 days after the receipt of any Net Available Cash from such Asset Disposition, the Company or the applicable Restricted Subsidiary, as the case may be, shall apply the Net Available Cash from such Asset Disposition:
(aA) to reduce the outstanding principal amount of any Credit Facility Indebtedness;
(B) to reduce the outstanding principal amount of any other Senior Indebtedness of the Company or a Subsidiary Guarantor; provided, however, that to the extent the Company or such Subsidiary Guarantor repays any such other Senior Indebtedness, the Company shall equally and ratably reduce the principal amount of Securities outstanding, through open-market purchases or through redemption, or shall offer (in accordance with the procedures set forth in Section 4.06(b)) to all Holders to purchase their Securities at 100% of the principal amount thereof, plus accrued but unpaid interest, if any, in an aggregate principal amount which, if the offer were accepted, would result in such reduction;
(C) to reduce the outstanding principal amount of Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor;
(D) to acquire Additional Assets; or
(E) to make capital expenditures that are used or useful in a Related Business, in the case of clauses (A), (B), and (C) other than Indebtedness owed to the Company or an Affiliate of the Company. Notwithstanding the foregoing provisions of this Section 4.06, the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with Section 4.06(b) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 35.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a)4.06, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cashIndebtedness.
(b) In Any Net Available Cash that is not applied or invested as provided in Section 4.06(a) shall constitute “Excess Proceeds.” When the event aggregate amount of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C)Excess Proceeds exceeds $35.0 million, the Company shall purchase Securities tendered pursuant to will make an offer by the Company for (an “Asset Disposition Offer”) to all Holders of the Securities (and, at the Company’s election, to holders of other Senior Indebtedness to purchase or redeem the maximum principal amount of Securities and such other Senior Subordinated Indebtedness that may be purchased out of the Company) (the "Offer") at a purchase amount of such Excess Proceeds. The offer price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, any Asset Disposition Offer will be equal to 100% of the accreted value thereof), without premium, principal amount of the Securities and/or any such Senior Indebtedness plus accrued but and unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser priceand Additional Interest, if any, as may to the date of purchase, and will be provided for by the terms of such Senior Subordinated Indebtedness of the Company) payable in cash in accordance with the procedures (including prorating in the event of over-subscriptionoversubscription) set forth in Section 4.06(c)this Indenture or the agreements governing the other Senior Indebtedness. If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company shall Trustee will select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which which, in the case of the Securities Securities, will be denominations of $1,000 2,000 principal amount or integral multiples of $1,000 in excess thereof. The Upon completion of each Asset Disposition Offer, the amount of Excess Proceeds will be reset at zero and, so long as all Securities validly tendered and not withdrawn pursuant to such offer are purchased by the Company shall not be required to make an Offer in compliance with this Section 4.06, any excess of the offer amount over the amount applied to purchase Securities (and such other Senior Subordinated Indebtedness of the CompanyIndebtedness) pursuant to such offer may be applied by the Company for any purpose not prohibited by this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition)Indenture.
(1c) (i) Promptly, and in any event within 10 days after the Company becomes obligated to make an Asset Disposition Offer, the Company shall will be obligated to deliver to the Trustee and send, by first-class mail to each Holder, (or otherwise deliver in accordance with the applicable procedures of the DTC) a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Asset Disposition Offer is oversubscribed) in integral multiples of $1,000 2,000 of principal amountamount or any whole integral multiple of $1,000 in excess thereof, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "“Purchase Date"”) and shall contain such information concerning the business of the Company which the Company in good faith believes will shall enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Asset Disposition Offer, together with the information contained address referred to in clause (3)iii) below.
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Indenture (Neustar Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (such Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; ;
(2) at least 8075% of the consideration thereof received by the Company Issuer or such Restricted Subsidiary, as the case may be, from such Asset Disposition is in the form of cash or Cash Equivalents or Additional Assets, or any combination thereof; and
(3) except as provided in the next paragraph an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied, within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, by the Issuer or such Restricted Subsidiary, as the case may be:
(a) to the extent the Issuer or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness) to prepay, repay, redeem or purchase Indebtedness of the Issuer under the Senior Secured Credit Agreement, any other Indebtedness of the Issuer or a Subsidiary Guarantor that is secured by a Lien permitted to be Incurred under this Indenture or Indebtedness (other than Disqualified Stock) of any Wholly-Owned Subsidiary that is not a Subsidiary Guarantor; provided, however, that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause (a), the Issuer or such Restricted Subsidiary is will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in 57an amount equal to the principal amount so prepaid, repaid or purchased; or
(ab) except to invest in Additional Assets; provided that pending the extent that the aggregate final application of any such Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a)4.16, the Issuer and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash shall in any manner not prohibited by this Indenture. Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in the preceding paragraph will be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) constitute “Excess Proceeds.” Not later than the assumption of Indebtedness day following the date that is one year from the later of the Company or any Restricted Subsidiary and the release date of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $20.0 million, the Issuer will be required to make an offer (“Asset Disposition Offer”) to all Holders and (2) securities received to the extent required by the Company or terms of other Pari Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the Issuer to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition (“Pari Passu Notes”), to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies that requires the purchase of Securities (and other Senior Subordinated Indebtedness may be purchased out of the Company) pursuant to Section 4.06(a)(3)(C)Excess Proceeds, the Company shall purchase Securities tendered pursuant to at an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of in cash in an amount equal to 100% of their the principal amount (or, in the event such other Senior Subordinated Pari Passu Indebtedness of the Company Issuer was issued with significant original issue discount, 100% of the accreted value thereof), without premium, ) of the Notes and Pari Passu Notes plus accrued but and unpaid interest and Liquidated Damages, if any, (or, or in respect of such other Senior Subordinated Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness Indebtedness) to the date of purchase (subject to the Company) right of holders of record on the relevant record date to receive interest due on the relevant interest payment date), in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c)this Indenture or the agreements governing the Pari Passu Notes, as applicable, in each case in denominations of at least $2,000 or an integral multiple of $1,000 thereafter. If the aggregate purchase price principal amount of Securities (Notes surrendered by holders thereof and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer Pari Passu Notes surrendered by holders or lenders, collectively, exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Trustee shall select the Securities and other Senior Subordinated Indebtedness Notes to be purchased on a pro rata basis but in round denominations, which in on the case basis of the Securities will be denominations of $1,000 aggregate principal amount or multiples thereofof tendered Notes and Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. The Company shall not be Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and Pari Passu Notes required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) be purchased pursuant to this Section 4.06 4.16 (the “Asset Disposition Offer Amount”) or, if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an the Asset Disposition Offer is required with respect Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Net Available Cash from Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related interest payment date, any subsequent Asset Disposition).
(1) Promptlyaccrued and unpaid interest and Liquidated Damages, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and in any event within 10 days after no further interest or Liquidated Damages will be payable to holders who tender Notes pursuant to the Company becomes obligated Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Issuer will, to make an the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Company shall deliver to the Trustee Asset Disposition Offer Amount has been validly tendered and sendnot properly withdrawn, by first-class mail to all Notes and Pari Passu Notes so validly tendered and not properly withdrawn, in each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either case in whole denominations of at least $2,000 or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in an integral multiples multiple of $1,000 of principal amount, at the applicable purchase pricethereafter. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes Issuer will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' ’ Certificate stating that such Securities are to be Notes or portions thereof were accepted for payment by the Company pursuant to and Issuer in accordance with the terms of this SectionSection 4.16 and, in addition, the Issuer will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. A Security shall be deemed The Issuer or the paying agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Disposition Offer Period) mail or deliver to have been each tendering Holder or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Notes or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Issuer for purchase at purchase, and the time Issuer will promptly issue a new Note, and the Trustee, directly upon delivery of an Officers’ Certificate from the Issuer, will authenticate and mail or through deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount of $2,000 or an agentintegral multiple of $1,000 thereafter. In addition, mails the Issuer will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Note not so accepted will be promptly mailed or delivers payment therefor delivered by the Issuer to the surrendering Holder.
(d) Holder thereof. The Company shall Issuer will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this SectionIndenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 4.16, the Company shall Issuer will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulations. For the purposes of clause (2) of the first paragraph of this Section 4.16, the following will be deemed to be cash:
(1) the assumption by the transferee of Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the Issuer or Indebtedness of a Restricted Subsidiary (other than Guarantor Subordinated Obligations or Disqualified Stock of any Restricted Subsidiary that is a Subsidiary Guarantor) and the release of the Issuer or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition (or in lieu of such a release, the agreement of the acquirer or its parent company to indemnify and hold the Issuer or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed Indebtedness; provided, however, that such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating), in which case the Issuer will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with clause (3)(a) of the first paragraph of this Section 4.16; and
(2) securities, notes or other obligations received by the Issuer or any Restricted Subsidiary from the transferee that are converted by the Issuer or such Restricted Subsidiary into cash within 90 days after receipt thereof. Notwithstanding the foregoing, the 75% limitation referred to in clause (2) of the first paragraph of this Section 4.16 shall be deemed satisfied with respect to any Asset Disposition in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with the foregoing provision on an after-tax basis, is equal to or greater than what the after-tax proceeds would have been had such Asset Disposition complied with the aforementioned 75% limitation. The requirement of clause (3)(b) of the first paragraph of this Section 4.16 above shall be deemed to be satisfied if an agreement (including a lease, whether a capital lease or an operating lease) committing to make the acquisitions or expenditures referred to therein is entered into by the Issuer or its Restricted Subsidiary within the specified time period and such Net Available Cash is subsequently applied in accordance with such agreement within six months following such agreement.
Appears in 1 contract
Samples: Indenture (Chaparral Energy, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The -------------------------------------------------- Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Company's Board of Directors, ) of the shares and assets subject to such Asset Disposition; , (2ii) at least 8075% of the consideration thereof received by the Company or such Restricted Subsidiary is in 57the form of cash and (iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, within 360 days after the later of the date of such ----- Asset Disposition or the receipt of such Net Available Cash, to, at the Company's or such Restricted
(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which that is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness10,000,000. For the purposes of this Section 4.06(a)4.06, the following are deemed to be cash or cash equivalentscash: (1x) the assumption of unsubordinated Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2y) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cashcash within 60 days of the issuance thereof.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Companyunsubordinated Indebtedness) pursuant to Section 4.06(a)(3)(C4.06(a)(iii)(B), the Company shall be required to purchase Securities (and other unsubordinated Indebtedness) tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Companyunsubordinated Indebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but and unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser priceinterest, if any, as may be provided for by to the terms date of such Senior Subordinated Indebtedness of the Company) purchase in accordance with the procedures (including prorating prorationing in the event of over-subscriptionoversubscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Companyunsubordinated Indebtedness) tendered pursuant to the Offer exceeds is less than the Net Available Cash allotted to their purchasethe purchase of the Securities (and other unsubordinated Indebtedness), the Company shall select apply the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but remaining Net Available Cash in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereofaccordance with Section 4.06(a)(iii)(C). The Company shall not be required to make an Offer to purchase for Securities (and other Senior Subordinated Indebtedness of the Companyunsubordinated Indebtedness) pursuant to this Section 4.06 if the Net Available Cash available therefor (after application of the proceeds as provided in clause (A) of Section 4.06(a)(iii)) is less than $10.0 million 2,500,000 for any particular Asset Disposition (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating prorationing as hereinafter described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will shall include (Ai) the most recently filed Annual Report on Form 10-K (including audited consolidated recent annual and quarterly financial statements) statements and management's discussion and analysis of financial condition and results of operation required to be delivered to the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent Securityholders pursuant to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports)Section 4.02, (Bii) a description of material developments in the Company's business subsequent to the date of the latest of such Reportsfinancial statements, and (Ciii) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained address referred to in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided belowabove, the Company shall deliver to the Trustee an Officers' Certificate as to (Ai) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (Bii) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (Ciii) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent paying agent (or, if the Company is acting as its own Paying Agentpaying agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be invested in Temporary Cash Investments and to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which that have been properly tendered to and are to be accepted by the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the Purchase Datedate of purchase, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities (and other unsubordinated Indebtedness) delivered by the Company to the Trustee is less than the Offer Amount applicable to the SecuritiesSecurities (and other unsubordinated Indebtedness), the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Security purchased. If at the expiration of the Offer Period the aggregate principal amount of Securities (and other unsubordinated Indebtedness) included in the Offer surrendered by holders thereof exceeds the Offer Amount, the Company shall select the Securities (and other unsubordinated Indebtedness) to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Securities (and other unsubordinated Indebtedness) in denominations of $1,000, or integral multiples thereof, shall be purchased). Holders whose Securities are purchased only in part shall will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulationsthereof.
Appears in 1 contract
Samples: Indenture (Ace LTD)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as such Fair Market Value to be determined on the value date of all non-cash consideration), as determined in good faith by the Board of Directors, contractually agreeing to such Asset Disposition) of the shares and or other assets subject to such Asset Disposition; and
(2) at least 8075% of the aggregate consideration thereof received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, from such Asset Disposition and all other Asset Dispositions since the Existing Second Lien Notes Issue Date, on a cumulative basis, is in 57the form of cash or Cash Equivalents or Additional Assets, or any combination thereof.
(b) The Net Available Cash from such Asset Disposition may be applied, within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, by the Company or such Restricted Subsidiary, as the case may be:
(1) to prepay, repay, redeem or purchase Indebtedness of the Company (including the Notes) or a Subsidiary Guarantor (other than Subordinated Obligations, Guarantor Subordinated Obligations or Disqualified Stock) or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor (in each case, excluding Indebtedness owed to the Company or an Affiliate of the Company); provided, however, that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause (b), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; or
(2) to make capital expenditures in the Oil and Gas Business or to invest in or acquire Additional Assets; provided, that (i) pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) of this Section 4.13, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture and (ii) Net Available Cash from an Asset Disposition consummated prior to the second anniversary of the Existing Second Lien Notes Issue Date may not be applied to repurchase, redeem, defease or otherwise acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Unsecured Debt.
(c) Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in Section 4.13(b) will be deemed to constitute “Excess Proceeds.” Not later than the 366th day from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Pari Passu Indebtedness or Indebtedness secured by Prior Liens (collectively, “Subject Debt”), to all holders of Subject Debt outstanding with similar provisions requiring the Company to make an offer to purchase such Subject Debt with the proceeds from any Asset Disposition to purchase the maximum principal amount of Notes and any such Subject Debt to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount (or, in the event such Subject Debt was issued with significant original issue discount, 100% of the accreted value thereof) of the Notes and Subject Debt plus accrued and unpaid interest, if any (or in respect of such Subject Debt, such lesser price, if any, as may be provided for by the terms of such Indebtedness), to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture or the agreements governing the Subject Debt, as applicable, in each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000. If the aggregate principal amount of Notes surrendered by Holders thereof and other Subject Debt surrendered by Holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Subject Debt. To the extent that the aggregate principal amount of Notes and Subject Debt so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to Articles Four and Five of this Indenture. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(d) The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the aggregate Net Available Cash from all “Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 millionDisposition Offer Period”). Pending application No later than five Business Days after the termination of Net Available Cash the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Subject Debt required to be purchased pursuant to this Section 4.06(a)4.13 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered and not properly withdrawn, all Notes and Subject Debt validly tendered and not properly withdrawn in response to the Asset Disposition Offer.
(e) If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such Net Available Cash shall record date, and no further interest will be invested payable to Holders who tender Notes pursuant to the Asset Disposition Offer.
(f) On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Subject Debt or portions of Notes and Subject Debt so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Subject Debt so validly tendered and not properly withdrawn, in Temporary Cash Investments each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or applied portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.13 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Subject Debt. The Company or the paying agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Disposition Offer Period) mail or deliver to temporarily reduce revolving credit indebtednesseach tendering Holder of Notes or holder or lender of Subject Debt, as the case may be, an amount equal to the purchase price of the Notes or Subject Debt so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided, that each such new Note will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess of $2,000. In addition, the Company will take any and all other actions required by the agreements governing the Subject Debt. Any Note not so accepted will be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date.
(g) The Company will comply, to the extent applicable, with the requirements of Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to an Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.13, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of its compliance with such securities laws or regulations.
(h) For the purposes of this clause (2) of Section 4.06(a)4.13(a) above, the following are will be deemed to be cash or cash equivalents: cash:
(1) the assumption by the transferee of Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the Company or Indebtedness of a Restricted Subsidiary (other than Guarantor Subordinated Obligations or Disqualified Stock of any Restricted Subsidiary that is a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with Section 4.13(b)(1)); and
(2) securities securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
cash within 180 days after receipt thereof. Notwithstanding the foregoing, the 75% limitation referred to in clause (b2) In the event of an Section 4.13(a) above shall be deemed satisfied with respect to any Asset Disposition that requires in which the purchase of Securities (and other Senior Subordinated Indebtedness cash or Cash Equivalents portion of the Company) pursuant to Section 4.06(a)(3)(C)consideration received therefrom, the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) determined in accordance with the procedures (including prorating in foregoing provision on an after-tax basis, is equal to or greater than what the event of overafter-subscription) set forth in Section 4.06(c). If tax proceeds would have been had such Asset Disposition complied with the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition)aforementioned 75% limitation.
(1i) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples The requirement of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a4.13(b) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security above shall be deemed to have been accepted for purchase at be satisfied if an agreement (including a lease, whether a capital lease or an operating lease) committing to make the time the Trustee, directly acquisitions or through an agent, mails or delivers payment therefor expenditures referred to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, therein is entered into by the Company shall comply with or its Restricted Subsidiary within the applicable securities laws specified time period and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance such Net Available Cash is subsequently applied in accordance with such securities laws or regulationsagreement within six months following such agreement.
Appears in 1 contract
Samples: Indenture (Goodrich Petroleum Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall notwill not consummate, and shall will not permit any Restricted Subsidiary toto consummate, directly or indirectly, consummate any Asset Disposition unless unless: (1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all any non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; (2) Disposition and at least 8085% of the consideration thereof received by the Company or such Restricted Subsidiary is in 57
the form of cash or Temporary Cash Investments; (aii) except an amount equal to 100% of the extent that the aggregate Net Available Cash from all such Asset Dispositions which Disposition is not applied by the Company (or such Restricted Subsidiary, as the case may be):
(A) first, to the extent the Company or such Restricted Subsidiary elects either (x) to acquire Additional Assets or (y) to prepay, repay, redeem or purchase Senior Indebtedness of the Company or such Restricted Subsidiary, as the case may be (other than in either case Indebtedness owed to the Company or an Affiliate of the Company), in each case within 180 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), for the Company to make an offer to the Holders of the Notes to purchase Notes pursuant to and subject to this Section 4.06(a(an "ASSET DISPOSITION PURCHASE OFFER"); and
(C) exceeds $10.0 millionthird, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to any application not prohibited by this Indenture; and (iii) at the time of such Asset Disposition no Default shall have occurred and be continuing (or would result therefrom). Pending application of Net Available Cash pursuant to this Section 4.06(a)Section, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtednessInvestments. For the purposes of this Section 4.06(a)Section, the following are deemed to be cash or cash equivalentscash: (1x) the assumption of Indebtedness (other than Junior Subordinated Obligations) of the Company or any Restricted Subsidiary Subsidiary, and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness Indebtedness, in connection with such Asset Disposition and (2y) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cashcash or Temporary Cash Investments.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C)an Asset Disposition Purchase Offer, the Company shall be required to purchase Securities Notes tendered pursuant to an such offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") Notes at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, "ASSET DISPOSITION PURCHASE PRICE") plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c)this Section. If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) Notes tendered pursuant to the Offer exceeds such offer is less than the Net Available Cash allotted to their purchasethe purchase thereof (the "ASSET DISPOSITION OFFER AMOUNT"), the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations permitted to apply the remaining Net Available Cash in accordance with clause (ii)(C) of $1,000 principal amount or multiples thereofparagraph (a) above. The Company shall not be required to make such an Asset Disposition Purchase Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor Asset Disposition Offer Amount is less than $10.0 million 1,000,000 (which lesser amount shall be carried forward for purposes of determining whether such an Offer offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1c) Promptly, and in any event within Within 10 days after the expiration of the 180 day period referred to in clause (ii)(B) of paragraph (a) above, if the Company becomes obligated is required to make an Asset Disposition Purchase Offer, the Company shall deliver send, by first class mail, a notice to each of the Holders, with a copy to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the an "Purchase DateASSET DISPOSITION PURCHASE NOTICE") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and containing all instructions and materials necessary to enable such Holders to tender Securities Notes pursuant to the Asset Disposition Purchase Offer. Each Asset Disposition Purchase Notice, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with govern the terms of this Section. A Security the Asset Disposition Purchase Offer, shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.state:
Appears in 1 contract
Samples: Indenture (Mego Mortgage Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Parent and the Company shall will not, and shall will not permit any of the Parent's Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate any Asset Disposition unless unless:
(1) the Parent, the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, ) of the shares and assets subject to sold or otherwise disposed of in such Asset Disposition; ;
(2) at least 8075% of the consideration thereof received by the Parent, the Company or such Restricted Subsidiary is in 57the form of cash or cash equivalents and is received at the time of such Asset Disposition; and
(3) upon the consummation of such Asset Disposition, the Parent or the Company shall apply, or cause such Restricted Subsidiary to apply, an amount equal to 100% of the Net Available Cash from such Asset Disposition within the Applicable Required Period:
(A) FIRST, to the extent the Parent or the Company elects (or is required by the terms of the Credit Agreement), to prepay, repay, redeem or purchase Indebtedness incurred under the Credit Agreement (and permanently reduce the commitments thereunder; PROVIDED, HOWEVER, that neither the Parent nor the Company shall be obligated to permanently reduce revolving commitments under the Credit Agreement in respect of any Net Available Cash constituting Deferred Lagoon Net Available Cash applied pursuant to this SUBCLAUSE (A) in reduction of revolving Indebtedness incurred under the Credit Agreement);
(B) SECOND, to the extent of the balance of such Net Available Cash after application in accordance with SUBCLAUSE (A) above, to the extent the Parent or the Company elects, to acquire Additional Assets; and
(C) THIRD, to the extent of the balance of such Net Available Cash after application in accordance with SUBCLAUSES (A) and (B), to make a Net Available Cash Offer in accordance with CLAUSE (b) below; Notwithstanding the foregoing provisions of this CLAUSE (a) ), the Parent, the Company and the Parent's Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this SECTION 4.16 except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) SECTION 4.16 exceeds $10.0 million5.0 million (at which time, all such Net Available Cash, and not just such excess, shall be applied in accordance with this SECTION 4.16). Pending application of Net Available Cash pursuant to this Section 4.06(a)SECTION 4.16, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a)SECTION 4.16, securities or assets received by the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of Parent, the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2) securities received by the Company or any Restricted Subsidiary Parent from the transferee that are promptly converted by the Parent, the Company or such Restricted Subsidiary into cashcash shall be deemed to be cash or cash equivalents, to the extent of the cash received in that conversion.
(b) In To the event of an Asset Disposition extent that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C)Parent, the Company shall purchase Securities tendered pursuant to an offer by or the Company for the Securities (and such other Senior Subordinated Indebtedness applicable Restricted Subsidiary of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall Parent does not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and apply all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the in respect of an Asset Dispositions pursuant to which such Offer is being made and Disposition in accordance with CLAUSES (C) the compliance of such allocation with the provisions of Section 4.06(aa)(3)(A) and (b). On a)(3)(B) above within the Applicable Required Period (or such dateearlier date that the Board of Directors of the Parent, the Company or such Restricted Subsidiary determines not to apply such Net Available Cash in such manner), then on the final day of the Applicable Required Period (or such earlier date) (each, a "NET AVAILABLE CASH OFFER TRIGGER DATE"), such aggregate amount of Net Available Cash which has not been applied on or before such Net Available Cash Offer Trigger Date as permitted in CLAUSES (a)(3)(A) and (a)(3)(B) above (each a "NET AVAILABLE CASH OFFER AMOUNT") shall also irrevocably deposit be applied by the Parent, the Company or such Restricted Subsidiary to make an offer to purchase (the "NET AVAILABLE CASH OFFER") on a date (the "NET AVAILABLE CASH OFFER PAYMENT DATE") not less than 30 nor more than 45 days following the applicable Net Available Cash Offer Trigger Date, from all Holders of the Notes and from all holders of other PARI PASSU Indebtedness that contain similar terms requiring an offer to purchase to be made with the Trustee or with proceeds of an Asset Disposition, on a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold PRO RATA basis in trust) in Temporary Cash Investments, maturing on the last day prior proportion to the Purchase Date respective principal amounts of the Notes and such other PARI PASSU Indebtedness (or on accreted values in the Purchase Date if funds are immediately available by open case of businessPARI PASSU Indebtedness issued with original issue discount), an that amount of Notes and such other PARI PASSU Indebtedness equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.Net
Appears in 1 contract
Samples: Indenture (Hines Horticulture Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company Issuer shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectlyconsummate an Asset Disposition, consummate any Asset Disposition unless unless:
(1) the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, Fair Market Value of the shares and assets subject sold or otherwise disposed of (measured as of the date of the definitive agreement with respect to such Asset Disposition); and
(2) at least 8075% of the consideration thereof therefor received by the Company Issuer or such Restricted Subsidiary, as the case may be (which, for purposes of this clause (2), consideration will not include any contingent payment obligations related to such Asset Disposition, including, earn-out payments, purchase price adjustments and deferred purchase price payments), is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities, as shown on the Issuer’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto, of the Issuer or any of its Restricted Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) (i) that are assumed by the transferee of any such assets and from which the Issuer or such Restricted Subsidiary is has been validly released by all creditors in 57
writing, or (aii) except to in respect of which neither the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or Issuer nor any Restricted Subsidiary and following such Asset Disposition has any obligation;
(B) any securities or other obligations received by the release of the Company Issuer or such Restricted Subsidiary from all liability on such Indebtedness transferee that are converted by the Issuer or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Disposition;
(C) any Capital Stock, properties or assets of the kind referred to in Section 4.11(b)(2);
(D) cash held in escrow as security for any purchase price settlement, for damages in respect of a breach of representations and warranties or covenants or for payment of other contingent obligations in connection with such Asset Disposition and Disposition; and
(2E) securities any Designated Noncash Consideration received by the Company Issuer or any Restricted Subsidiary from in such Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the transferee that are promptly converted by greater of (x) $20.0 million and (y) 1.5% of the Company or Total Assets of the Issuer at the time of the receipt of such Restricted Subsidiary into cashDesignated Noncash Consideration, with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value, in each case, shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) In Within 365 days after the receipt of any Net Cash Proceeds of any Asset Disposition, the Issuer or such Restricted Subsidiary, at its option, may apply the Net Cash Proceeds from such Asset Disposition to one or more of the following, or any combination,
(1) to reduce or repay:
(A) First Lien Claims (provided, that if the Issuer or any Restricted Subsidiary shall so reduce First Lien Claims other than the Notes, the Issuer will equally and ratably reduce Obligations under the Notes) and to the extent the Obligations under the Notes are reduced or repaid, they shall be reduced or repaid in accordance with Section 3.07, through open market purchases of the Notes (provided, that such purchases are at or above 100% of the principal amount thereof), or through an offer to purchase Notes (in accordance with the procedures set forth below for an Asset Disposition Offer (as defined below)); provided, that all Net Cash Proceeds used to make such an offer to purchase shall be deemed to have been so applied whether or not accepted by the Holders;
(B) to the extent the property that is subject to such Asset Disposition was sold by a non-Guarantor Subsidiary, Indebtedness of a non-Guarantor Subsidiary, other than Indebtedness owed to the Issuer or another Restricted Subsidiary; or
(2) to make (A) an Investment in any one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock of a Restricted Subsidiary or results in the Issuer or its Restricted Subsidiaries owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary; provided further, that if such Asset Disposition is of Collateral and such Restricted Subsidiary is not already a Guarantor, such Restricted Subsidiary shall become a Guarantor and the assets that are the subject of such Investment shall at the time of such Investment constitute Collateral to the extent they are not Excluded Rigs, (B) capital expenditures in respect of the Issuer, its Restricted Subsidiaries or their respective assets or (C) acquisitions of other properties or assets to be held by the Issuer or its Restricted Subsidiaries (including assets that replace the business, properties and assets of the Issuer or any of its Restricted Subsidiaries that were the subject of such Asset Disposition), in the case of each of (A), (B) and (C), used or useful in a Related Business; provided, that if such Asset Disposition is of Collateral, in each case the property subject to such acquisitions shall at the time of such acquisitions constitute Collateral to the extent such property is not an Excluded Rig; or provided that a binding commitment to apply Net Cash Proceeds as set forth in Section 4.11(b) shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment so long as the Issuer or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 180 days of the end of such 365-day period (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Cash Proceeds are applied in connection therewith, then the Issuer or such Restricted Subsidiary shall be permitted to apply the Net Cash Proceeds in any manner set forth above before the expiration of such 180-day period and, in the event the Issuer or such Restricted Subsidiary fails to do so, then such Net Cash Proceeds shall constitute Excess Proceeds (as defined below).
(c) Any Net Cash Proceeds from an Asset Disposition that requires are not invested or applied as provided and within the purchase of Securities (and other Senior Subordinated Indebtedness time period set forth in Section 4.11(b) will be deemed to constitute “Excess Proceeds”. The Issuer shall make an offer to all Holders of the CompanyNotes (an “Asset Disposition Offer”) pursuant and all holders of Additional First Lien Indebtedness containing provisions similar to Section 4.06(a)(3)(Cthose set forth in this Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem the maximum aggregate principal amount of the Notes (equal to $2,000 or integral multiples of $1,000 in excess thereof) and such Additional First Lien Indebtedness (plus all accrued interest on such Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith), that may be purchased out of the Company shall purchase Securities tendered pursuant to Excess Proceeds at an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of in cash in an amount equal to 100% of their the principal amount thereof (or, in the event such other Senior Subordinated Notes or Additional First Lien Indebtedness of the Company was were issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but and unpaid interest (orto, in respect but not including, the date fixed for the closing of such other Senior Subordinated Indebtednessoffer (subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date), such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in this Indenture or the agreements governing such Additional First Lien Indebtedness, as applicable. The Issuer shall commence an Asset Disposition Offer with respect to Excess Proceeds within 30 days after the date that Excess Proceeds exceed $30.0 million by delivering the notice required pursuant to Section 4.06(c3.10, with a copy to the Trustee. The Issuer may, at its election, satisfy the foregoing obligations with respect to any Net Cash Proceeds from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Cash Proceeds prior to the expiration of the relevant 365-day period (or such longer period provided above).
(d) To the extent that the aggregate amount of Notes and Additional First Lien Indebtedness tendered pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for any purpose not prohibited by this Indenture. If the aggregate purchase price principal amount of Securities (Notes and any other Senior Subordinated Additional First Lien Indebtedness of the Company) tendered pursuant to the Offer surrendered by such holders thereof exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Trustee shall select the Securities Notes and other Senior Subordinated the applicable agent or the Issuer shall select such Additional First Lien Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing based on the last day prior to the Purchase Date accreted value or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement Notes tendered (with adjustments as necessary so that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only no Notes will be repurchased in part in an unauthorized denomination) or such Additional First Lien Indebtedness tendered. Upon completion of any such Asset Disposition Offer, the amount of Excess Proceeds that resulted in the Asset Disposition Offer shall be issued new Securities equal in principal amount reset to the unpurchased portion of the Securities surrenderedzero.
(4e) At Pending the time the Company delivers Securities to the Trustee which are to be accepted for purchasefinal application of any Excess Proceeds, the Company shall also deliver an Officers' Certificate stating Issuer (or the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Excess Proceeds in any manner that such Securities are to be accepted is not prohibited by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering HolderIndenture.
(df) The Company Issuer shall comply, to the extent applicable, comply with the requirements of Section 14(e) of Rule 14e-l under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the purchase repurchase of Securities the Notes pursuant to this Sectionan Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this SectionIndenture, the Company Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof. Notwithstanding anything to the contrary in this Section by virtue 4.11, the Issuer shall not, and shall not permit any Restricted Subsidiary, directly or indirectly, to consummate any Asset Disposition that would result in a violation of its compliance with such securities laws or regulationsSection 4.22.
Appears in 1 contract
Samples: Indenture
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, Fair Market Value of the shares and assets subject to such Asset Disposition; , (2ii) at least 80% of the consideration thereof received by the Company or such Restricted Subsidiary is in 57the form of cash, Temporary Cash Investments or other Qualified Proceeds (provided that the aggregate Fair Market Value of Qualified Proceeds (other than cash and Temporary Cash Investments) shall not exceed $10 million since the Closing Date) and (iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (1) first, (A) to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or Indebtedness (other than any Disqualified Stock) of a Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company and other than Preferred Stock) or (B) to the extent the Company or such Restricted Subsidiary elects, to acquire Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary), in each case, within one year from the later of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that pending the final application of any such Net Available Cash under clause (1), the Company or such Restricted Subsidiary may temporarily reduce amounts available under revolving credit facilities or invest such Net Available Cash in Temporary Cash Investments; (2) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (1), to make an Offer to purchase Notes pursuant to and subject to the conditions of Section 4.06(b); provided, however, that if the Company elects (or is required by the terms of any Senior Subordinated Indebtedness), such Offer may be made ratably to purchase the Notes and other Senior Subordinated Indebtedness of the Company, and (3) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (1) and (2), for general corporate purposes; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (1), (2) or (3) above, the Company
(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which that is not applied in accordance with this Section 4.06(a) exceeds $10.0 10 million. Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of clause (a)(ii) of this Section 4.06(a)4.06 only, the following are deemed to be cash or cash equivalentscash: (1A) the assumption of Indebtedness any liabilities (as shown on the Company's or a Restricted Subsidiary's most recent balance sheet) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the release of Notes or any Note Guarantee) pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from all further liability on such Indebtedness in connection with such Asset Disposition and (2B) any securities or other obligations received by the Company or any Restricted Subsidiary from the transferee that are promptly converted within 90 days of receipt by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities Notes (and other Senior Subordinated Indebtedness of the CompanyIndebtedness) pursuant to Section 4.06(a)(3)(C4.06(a)(iii)(3), the Company shall be required to purchase Securities Notes (and other Senior Subordinated Indebtedness) tendered pursuant to an offer by the Company to Holders for the Securities Notes (and such other Senior Subordinated Indebtedness of the CompanyIndebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, ) plus accrued but and unpaid interest and liquidated damages, if any (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by pursuant to the terms thereof), to the date of such Senior Subordinated Indebtedness purchase (subject to the right of Holders of record on the Companyrelevant record date to receive interest due on the relevant interest payment date) in accordance with the procedures (including prorating in the event of over-subscriptionoversubscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities Notes (and any other Senior Subordinated Indebtedness of the CompanyIndebtedness) tendered pursuant to the Offer exceeds is less than the Net Available Cash allotted to their purchasethe purchase of the Notes (and other Senior Subordinated Indebtedness), the Company shall select apply the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but remaining Net Available Cash in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereofaccordance with Section 4.06(a)(iii)(3). The Company shall not be required to make an Offer to purchase Securities for Notes (and other Senior Subordinated Indebtedness of the CompanyIndebtedness) pursuant to this Section 4.06 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 4.06(a)(iii)(1) and Section 4.06(a)(iii)(2)) is less than $10.0 10 million for any particular Asset Disposition (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1i) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities Notes purchased by the Company either in whole or in part (subject to prorating as hereinafter described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will shall include (A1) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B2) a description of material developments in the Company's business subsequent to the date of the latest of such Reportsreports, and (C3) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities Notes pursuant to the Offer, together with the information contained address referred to in clause (3iii).
(2ii) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided belowabove, the Company shall deliver to the Trustee an Officers' Certificate as to (A1) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B2) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C3) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such dateNot later than one Business Day before the Purchase Date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent paying agent (or, if the Company is acting as its own Paying Agentpaying agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount with written instructions for investment in Temporary Cash Investments and to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation cancelation the Securities Notes or portions thereof which that have been properly tendered to and are to be accepted by the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the Purchase Datedate of purchase, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities Offer Amount delivered by the Company to the Trustee is less greater than the Offer Amount applicable to purchase price of the SecuritiesNotes (and other Senior Subordinated Indebtedness) tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3iii) Holders electing to have a Security Note purchased shall be required to surrender the SecurityNote, with an appro- priate appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security Note or Notes which was were delivered for purchase by the Holder for purchase and a statement that such Holder Xxxxxx is withdrawing his election to have such Security Note or Notes purchased. If at the expiration of the Offer Period the aggregate principal amount of Notes and any other Senior Subordinated Indebtedness included in the Offer surrendered by holders thereof exceeds the Offer Amount, the Company shall select the Notes and other Senior Subordinated Indebtedness to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes and other Senior Subordinated Indebtedness in denominations of $1,000, or integral multiples thereof, shall be purchased). Holders whose Securities Notes are purchased only in part shall will be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities Notes surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(div) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulationsthereof.
Appears in 1 contract
Samples: Indenture (Semiconductor Components Industries LLC)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall Parent Guarantor will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company Parent Guarantor or such any of its Restricted Subsidiary Subsidiaries receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as such Fair Market Value to be determined on the value date of all non-cash consideration), as determined in good faith by the Board of Directors, contractually agreeing to such Asset Disposition) of the shares and or other assets subject to such Asset Disposition; ;
(2) at least 8075% of the aggregate consideration thereof received by the Company Parent Guarantor or any of its Restricted Subsidiaries from such Asset Disposition and all other Asset Dispositions since the Issue Date, on a cumulative basis, is in the form of cash or Cash Equivalents or Additional Assets, or any combination thereof; and
(3) except as provided in the next paragraph, an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied, within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, by the Parent Guarantor or such Restricted Subsidiary, as the case may be:
(a) to prepay, repay, redeem or purchase Pari Passu Indebtedness of the Parent Guarantor, the Issuer (including the Securities) or a Subsidiary Guarantor or any Indebtedness (other than Disqualified Stock) of a Restricted Subsidiary that is not a Subsidiary Guarantor (in each case, excluding Indebtedness owed to the Parent Guarantor or an Affiliate of the Parent Guarantor); provided, however, that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause (a), the Parent Guarantor or such Restricted Subsidiary is will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in 57an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; or
(b) to invest in Additional Assets; provided that pending the final application of any such Net Available Cash in accordance with clause (a) except to or clause (b) above, the extent that the aggregate Parent Guarantor and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. Any Net Available Cash from all Asset Dispositions which that is not applied or invested as provided in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application the preceding paragraph will be deemed to constitute “Excess Proceeds.” Not later than the 366th day from the later of Net Available Cash pursuant to this Section 4.06(a), the date of such Asset Disposition or the receipt of such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For Cash, if the purposes aggregate amount of this Section 4.06(a)Excess Proceeds exceeds $20.0 million, the following are deemed Issuer will make an offer (“Asset Disposition Offer”) to all Holders of Securities and, to the extent required by the terms of other Pari Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the Issuer to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Securities”) to purchase the maximum principal amount of Securities and any such Pari Passu Securities to which the Asset Disposition Offer applies that may be cash or cash equivalents: (1) the assumption of Indebtedness purchased out of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C)Excess Proceeds, the Company shall purchase Securities tendered pursuant to at an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of in cash in an amount equal to 100% of their the principal amount (or, in the event such other Senior Subordinated Pari Passu Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, ) of the Securities and Pari Passu Securities plus accrued but and unpaid interest interest, if any (or, or in respect of such other Senior Subordinated Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness Indebtedness), to, but excluding, the date of purchase (subject to the Company) right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date), in accordance with the procedures (including prorating in the event of over-subscription) set forth in this Section 4.06(c)3.5 or the agreements governing the Pari Passu Securities, as applicable, in each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000. If the aggregate purchase price principal amount of Securities (surrendered by Holders thereof and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer Pari Passu Securities surrendered by holders or lenders, collectively, exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Trustee shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in on the case basis of the Securities will be denominations of $1,000 aggregate principal amount or multiples thereofof tendered Securities and Pari Passu Securities. To the extent that the aggregate principal amount of Securities and Pari Passu Securities so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Parent Guarantor and its Restricted Subsidiaries may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. The Company shall not be Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will purchase the principal amount of Securities and Pari Passu Securities required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) be purchased pursuant to this Section 4.06 3.5 (the “Asset Disposition Offer Amount”) or, if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an the Asset Disposition Offer is required with respect Amount has been so validly tendered and not properly withdrawn, all Securities and Pari Passu Securities validly tendered and not properly withdrawn in response to the Net Available Cash from Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related interest payment date, any subsequent Asset Disposition).
(1) Promptlyaccrued and unpaid interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and in any event within 10 days after no further interest will be payable to Holders who tender Securities pursuant to the Company becomes obligated Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Issuer will, to make an the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Securities and Pari Passu Securities or portions of Securities and Pari Passu Securities so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Company shall deliver to the Trustee Asset Disposition Offer Amount has been validly tendered and sendnot properly withdrawn, by first-class mail to all Securities and Pari Passu Securities so validly tendered and not properly withdrawn, in each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either case in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of principal amount, at the applicable purchase price$2,000. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes Issuer will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' ’ Certificate stating that such Securities are to be or portions thereof were accepted for payment by the Company pursuant to and Issuer in accordance with the terms of this SectionSection 3.5 and, in addition, the Issuer will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Securities. A Security shall be deemed The Issuer or the paying agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Disposition Offer Period) mail or deliver to have been each tendering Holder of Securities or holder or lender of Pari Passu Securities, as the case may be, an amount equal to the purchase price of the Securities or Pari Passu Securities so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Issuer for purchase at purchase, and the time Issuer will promptly issue a new Security, and the Trustee, directly upon delivery of an Officers’ Certificate from the Issuer, will authenticate and mail or through deliver such new Security to such Holder, in a principal amount equal to any unpurchased portion of the Security surrendered; provided that each such new Security will be in a minimum principal amount of $2,000 or an agentintegral multiple of $1,000 in excess of $2,000. In addition, mails the Issuer will take any and all other actions required by the agreements governing the Pari Passu Securities. Any Security not so accepted will be promptly mailed or delivers payment therefor delivered by the Issuer to the surrendering Holder.
(d) Holder thereof. The Company shall Issuer will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities pursuant to this Sectionan Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 3.5, the Company shall Issuer will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulations. For the purposes of clause (2) of the first paragraph of this Section 3.5, the following will be deemed to be cash:
(1) the assumption by the transferee of Indebtedness (other than Guarantor Subordinated Obligations or Disqualified Stock) of the Parent Guarantor or Indebtedness of a Restricted Subsidiary (other than Subordinated Obligations or Disqualified Stock of the Issuer and Guarantor Subordinated Obligations or Disqualified Stock of any Restricted Subsidiary that is a Subsidiary Guarantor) and the release of the Parent Guarantor or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition (in which case the Parent Guarantor will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with clause (3)(a) of the first paragraph of this Section 3.5;
(2) with respect to any Asset Disposition of oil and gas properties by the Parent Guarantor or any of its Restricted Subsidiaries in which the Parent Guarantor or such Restricted Subsidiary still retains an interest, any agreement by the transferee (or any Affiliate thereof) to pay all or a portion of the costs and expenses related to the exploration, development, completion or production of such properties and activities related thereto; and
(3) securities, notes or other obligations received by the Parent Guarantor or any Restricted Subsidiary from the transferee that are converted by the Parent Guarantor or such Restricted Subsidiary into cash within 180 days after receipt thereof. Notwithstanding the foregoing, the 75% limitation referred to in clause (2) of the first paragraph of this Section 3.5 shall be deemed satisfied with respect to any Asset Disposition in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with the foregoing provision on an after-tax basis, is equal to or greater than what the after-tax proceeds would have been had such Asset Disposition complied with the aforementioned 75% limitation. The requirement of clause (3)(b) of the first paragraph of this Section 3.5 shall be deemed to be satisfied if an agreement (including a lease, whether a capital lease or an operating lease) committing to make the acquisitions or expenditures referred to therein is entered into by the Parent Guarantor or its Restricted Subsidiary within the specified time period and such Net Available Cash is subsequently applied in accordance with such agreement within six months following such agreement. The Parent Guarantor will not, and will not permit any Restricted Subsidiary to, engage in any Asset Swaps, unless:
(1) at the time of entering into such Asset Swap and immediately after giving effect to such Asset Swap, no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(2) in the event such Asset Swap involves the transfer by the Parent Guarantor or any Restricted Subsidiary of assets having an aggregate Fair Market Value in excess of $20.0 million, the terms of such Asset Swap have been approved by a majority of the members of the Board of Directors of the Parent Guarantor.
Appears in 1 contract
Samples: Indenture (ANTERO RESOURCES Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of DirectorsDirectors or by the chief financial or accounting officer of the Company, of the shares and assets subject to such Asset Disposition; (2) Disposition and at least 80% of the consideration thereof received by the Company or such Restricted Subsidiary is in 57
(a) except to the extent that form of cash or cash equivalents. If the aggregate Company or any Restricted Subsidiary engages in an Asset Disposition, the Company may use the Net Available Cash from all such Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application Disposition, within one year after the later of Net Available Cash pursuant to this Section 4.06(a), such Asset Disposition and the receipt of such Net Available Cash (such later date, the "Trigger Date"), to (i) permanently repay or prepay any then outstanding Senior Indebtedness of the Company or any Restricted Subsidiary or (ii) invest in or acquire (or enter into a legally binding commitment to invest in or acquire) Additional Assets; provided that the transaction subject to any such commitment be consummated within 180 days after the date of such commitment. If any such legally binding commitment to invest in or acquire such Additional Assets is terminated, then the Company may, within 90 days of such termination or the Trigger Date, whichever is later, use such Net Available Cash as provided in clause (i) or (ii) (without giving effect to the parenthetical contained in such clause (ii)) above. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph constitutes "Excess Proceeds."
(b) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company shall, within 30 days thereof, apply such aggregate Excess Proceeds
(1) first, to make an Offer to Purchase Outstanding Securities at 100% of their principal amount plus accrued and unpaid interest and Special Interest, if any, to the Purchase Date and, to the extent required by the terms thereof, any other Indebtedness of the Company that is pari passu with the Securities at a price no greater than 100% of the principal amount thereof plus accrued interest to the date of purchase and (2) second, to the extent of any remaining Excess Proceeds following the completion of the Offer to Purchase, to any other use as determined by the Company which is not otherwise prohibited by this Indenture. Upon the completion of an Offer to Purchase pursuant to this paragraph (b), the amount of Excess Proceeds shall be invested in Temporary Cash Investments or applied reset to temporarily reduce revolving credit indebtedness. zero.
(c) For the purposes of this Section 4.06(a)4.18, the following are deemed to be cash or cash equivalents: (1x) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2y) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless: (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; (2) at least 8075% of the consideration thereof from such Asset Disposition received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in 57the form of cash or Cash Equivalents; and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company or such Restricted Subsidiary, as the case may be: (A) FIRST, to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Senior Indebtedness), to prepay, repay or purchase Senior Indebtedness or Indebtedness (other than any Preferred Stock or Guarantor Subordinated Obligation) of a Restricted Subsidiary that is a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; PROVIDED, HOWEVER, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (A), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; and (B) SECOND, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company or such Restricted Subsidiary elects, to invest in Additional Assets within 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash.
(ab) Any Net Available Cash from Asset Sales that are not applied or invested as provided in SECTION 3.6(a) will be deemed to constitute "EXCESS PROCEEDS." On the 361st day after an Asset Disposition, if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer ("ASSET SALE OFFER") to all Holders of Securities and to the extent required by the terms of other Senior Subordinated Indebtedness, to all holders of other Senior Subordinated Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Subordinated Indebtedness with the proceeds from any Asset Disposition ("PARI PASSU NOTES"), to purchase the maximum principal amount of Securities and any such Pari Passu Notes to which the Asset Sale Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000. To the extent that the aggregate amount of Securities and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. If the aggregate principal amount of Securities surrendered by Holders of the Securities and other Pari Passu Notes surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select the Securities and Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Securities and Pari Passu Notes. Upon completion of such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(1) The Asset Sale Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the aggregate Net Available Cash from "ASSET SALE OFFER PERIOD"). No later than five Business Days after the termination of the Asset Sale Offer Period (the "ASSET SALE PURCHASE DATE"), the Company will purchase the principal amount of Securities and Pari Passu Notes required to be purchased pursuant to this SECTION 3.6 (the "ASSET SALE OFFER AMOUNT") or, if less than the Asset Sale Offer Amount has been so validly tendered, all Securities and Pari Passu Notes validly tendered in response to the Asset Dispositions which Sale Offer.
(2) If the Asset Sale Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the Person in whose name a Security is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Securities pursuant to the Asset Sale Offer.
(3) On or before the Asset Sale Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Sale Offer Amount of Securities and Pari Passu Notes or portions of Securities and Pari Passu Notes so validly tendered and not applied properly withdrawn pursuant to the Asset Sale Offer, or if less than the Asset Sale Offer Amount has been validly tendered and not properly withdrawn, all Securities and Pari Passu Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000. The Company will deliver to the Trustee an Officers' Certificate stating that such Securities or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.06(aSECTION 3.6 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Sale Offer Period) exceeds mail or deliver to each tendering Holder of Securities or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Securities or Pari Passu Notes so validly tendered and not properly withdrawn by such Holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Security, and the Trustee, upon delivery of an Officers' Certificate from the Company will authenticate and mail or deliver such new Security to such Holder, in a principal amount equal to any unpurchased portion of the Security surrendered; PROVIDED that each such new Security will be in a principal amount of $10.0 million1,000 or an integral multiple of $1,000. Pending application In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Security not so accepted will be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtednessthe Asset Sale Offer on the Asset Sale Purchase Date. For the purposes of this Section 4.06(a)SECTION 3.6, the following are will be deemed to be cash or cash equivalents: cash:
(1) the assumption by the transferee of Indebtedness (other than Senior Subordinated Indebtedness, Subordinated Obligations or Disqualified Stock) of the Company or Indebtedness (other than Guarantor Senior Subordinated Indebtedness, Guarantor Subordinated Obligations or Preferred Stock) of any Restricted Subsidiary of the Company and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with SECTION 3.6(a)(3)(A)); and
(2) securities securities, notes or other obligations received by the Company or any Restricted Subsidiary of the Company from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities pursuant to this SectionIndenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSECTION 3.6, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulationsany conflict.
Appears in 1 contract
Samples: Indenture (Georgia Gulf Corp /De/)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company On and after the Escrow Release Date, the Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless unless:
(1i) the Company Issuer or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, ) of the shares and assets subject to such Asset Disposition; and
(2ii) at least 8075% of the consideration thereof received by the Company Issuer or such Restricted Subsidiary is in 57the form of cash or Temporary Cash Investments. Within 365 days after the receipt of any Net Available Cash from such Asset Disposition, the Issuer or the applicable Restricted Subsidiary, as the case may be, shall apply such Net Available Cash:
(aA) to reduce Obligations with respect to Credit Facility Indebtedness and, in the case of revolving loans, to correspondingly reduce commitments with respect thereto;
(B) to reduce Obligations under Indebtedness (other than Subordinated Obligations) that is secured by a Lien (including Obligations under the 2023 Notes Indenture), which Lien is permitted by this Indenture and, in the case of revolving loans, to correspondingly reduce commitments with respect thereto;
(C) to reduce Obligations under any other Senior Indebtedness of the Issuer or a Guarantor; provided, however, that to the extent the Issuer or such Guarantor repays any such other Senior Indebtedness, the Issuer shall equally and ratably reduce the principal amount of the Notes outstanding through open-market purchases or through redemption, or shall offer (in accordance with the procedures set forth in Section 4.06(b) and (c)) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus accrued but unpaid interest, if any, in an aggregate principal amount which, if the offer were accepted, would result in such reduction (and, in the case of revolving loans, to correspondingly reduce commitments with respect thereto);
(D) to reduce Obligations under any Indebtedness of a Restricted Subsidiary that is not a Guarantor and, in the case of revolving loans, to correspondingly reduce commitments with respect thereto;
(E) to acquire Additional Assets; or
(F) to make capital expenditures that are used or useful in a Related Business or that replace the businesses, properties and/or assets that are the subject of such Asset Disposition; in the case of clause (A), (B), (C) and (D), other than Indebtedness owed to the Issuer or an Affiliate of the Issuer; provided that, a binding commitment to apply any Net Available Cash for purposes specified in clauses (E) or (F) above entered into in good faith by the Issuer or a Restricted Subsidiary prior to the expiration of the relevant 365-day period will extend such period by an additional 180 days to the extent of the Net Available Cash covered thereby. Notwithstanding the foregoing provisions of this Section 4.06(a), the Issuer and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 4.06 except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) 4.06 exceeds $10.0 50 million. Pending application of Net Available Cash pursuant to this Section 4.06(a)4.06, such Net Available Cash shall may be invested in Temporary Cash Investments or applied to temporarily reduce utilized for general corporate purposes, including repayment of revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cashborrowings.
(b) In Any Net Available Cash that is not applied or invested as provided in Section 4.06(a) shall constitute “Excess Proceeds.” When the event aggregate amount of Excess Proceeds exceeds $50 million, the Issuer shall make an offer (an “Asset Disposition that requires Offer”) to all Holders (with a copy to the purchase Trustee) and, at the Issuer’s election, to holders of Securities (and other Senior Subordinated Indebtedness to purchase or redeem the maximum principal amount of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (Notes and such other Senior Subordinated Indebtedness that may be purchased out of the Company) (the "Offer") at a purchase amount of such Excess Proceeds. The offer price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, any Asset Disposition Offer shall be equal to 100% of the accreted value thereof), without premium, principal amount of the Notes and/or any such Senior Indebtedness plus accrued but and unpaid interest (orto the date of purchase, and shall be payable in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) cash in accordance with the procedures (including prorating in the event of over-subscriptionoversubscription) set forth in Section 4.06(c)this Indenture or the agreements governing the other Senior Indebtedness. If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Trustee shall select the Securities Notes, and the trustee or agent for the other Senior Subordinated Indebtedness shall select such other Senior Indebtedness to be purchased on a pro rata basis basis, but in round denominations, which which, in the case of the Securities will Notes, shall be denominations of $1,000 2,000 principal amount or integral multiples of $1,000 in excess thereof. The Company Upon completion of each Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero and, so long as all such Notes and such other Senior Indebtedness validly tendered and not be required withdrawn pursuant to make an Offer such offer are purchased by the Issuer in compliance with this Section 4.06, any excess of the offer amount over the amount applied to purchase Securities Notes (and such other Senior Subordinated Indebtedness of the CompanyIndebtedness) pursuant to such offer may be applied by the Issuer for any purpose not prohibited by this Indenture. The Issuer may satisfy its obligations under this Section 4.06 if the with respect to any Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such by making an Asset Disposition Offer is required with respect to the such Net Available Cash from any subsequent Asset Dispositionprior to the expiration of the relevant 365 days (or extended period provided above) or with respect to Excess Proceeds of $50 million or less, including by making an offer to purchase Notes pursuant to clause (C) of the second paragraph of Section 4.06(a).
(1i) Promptly, and in any event within 10 days Promptly after the Company Issuer becomes obligated to make an Asset Disposition Offer, the Company Issuer shall be obligated to deliver to the Trustee and send, by first-class mail or electronically to each Holder, a written notice stating that the Holder may elect to have his Securities Notes purchased by the Company Issuer either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Asset Disposition Offer is oversubscribed) in denominations of $2,000 of principal amount or any whole integral multiples multiple of $1,000 of principal amountin excess thereof, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "“Purchase Date"”) and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities Notes pursuant to the Asset Disposition Offer, together with the information contained address referred to in clause (3)iii) below.
(2ii) Not later than the date upon which written notice of an Asset Disposition Offer is delivered to the Trustee as provided belowabove, the Company Issuer shall deliver to the Trustee an Officers' ’ Certificate as to (A) the amount of the Asset Disposition Offer (the "“Offer Amount"”), including information as to any other Senior Subordinated Indebtedness included in the Asset Disposition Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Asset Disposition Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Asset Disposition Offer remains open (the "“Offer Period"”), the Company Issuer shall deliver to the Trustee for cancellation the Securities Notes or portions thereof which that have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06Issuer.
(3iii) Holders electing to have a Security Note purchased shall be required to surrender the SecurityNote, with an appro- priate appropriate form duly completed, to the Company Issuer at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company Issuer receives not later than one Business Day prior to the Purchase Date, a telex, facsimile or electronic transmission or letter setting forth the name of the Holder, the principal amount of the Security Note which was delivered for purchase by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Security Note purchased. If at the expiration of the Offer Period the aggregate principal amount of Notes included in the Asset Disposition Offer surrendered by holders thereof exceeds the Offer Amount, the Issuer shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Issuer so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be purchased), or in the case of Global Notes, in accordance with the applicable procedures of the Depositary. Holders whose Securities Notes are purchased only in part shall be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities Notes surrendered; provided that each such new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. Any Note not so accepted shall be promptly mailed or delivered by the Issuer to the Holder thereof.
(4iv) At On the time purchase date, all Notes purchased by the Company delivers Securities Issuer under this Section 4.06 shall be delivered by the Issuer to the Trustee which are to be accepted for purchasecancellation, and the Company Issuer shall also deliver an Officers' Certificate stating that such Securities are to be accepted by pay the Company pursuant to purchase price plus accrued and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trusteeunpaid interest, directly or through an agentif any, mails or delivers payment therefor to the surrendering HolderHolders entitled thereto (subject to the right of Holders of record of the Notes on the relevant record date to receive interest due on the relevant interest payment date).
(d) The Company Issuer shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this SectionSection 4.06. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 4.06, the Company Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.06 by virtue of its compliance with such securities laws or regulations.
(e) For the purposes of this Section 4.06, the following are deemed to be cash or Temporary Cash Investments:
(i) the assumption or discharge of Indebtedness of the Issuer or any Restricted Subsidiary (other than Subordinated Obligations or Obligations in respect of Disqualified Stock of the Issuer or Preferred Stock of a Guarantor) and the release of the Issuer or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition;
(ii) any liabilities, as shown on the Issuer’s most recent consolidated balance sheet, of the Issuer or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the transferee of shares of Capital Stock, property or other assets in the Asset Disposition or that are otherwise cancelled or terminated in connection with the transaction with such transferee, in each case pursuant to a customary agreement that releases the Issuer or such Restricted Subsidiary from any and all liability therefor;
(iii) any securities, notes or other obligations received by the Issuer or any Restricted Subsidiary from the transferee that are converted by the Issuer or such Restricted Subsidiary into cash or Temporary Cash Investments (to the extent of the Temporary Cash Investments received) within 180 days after the date of the applicable Asset Disposition, to the extent of the cash received in that conversion; and
(iv) any Designated Noncash Consideration received by the Issuer or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate Fair Market Value that, when taken together with all other Designated Noncash Consideration received pursuant to this clause (iv) that is at that time outstanding, does not exceed the greater of (x) $90 million and (y) 0.30% of Total Assets (determined as of the end of the most recent fiscal quarter for which internal financial statements are available) at the time of the receipt of such Designated Noncash Consideration (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
Appears in 1 contract
Samples: Indenture (Western Digital Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit either of the Issuers or any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless (1i) the Company Company, the Issuers or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value value, as determined in good faith by the Company's Board of Directors (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; , (2ii) at least 80% of the consideration thereof received by the Company Company, the Issuers or such Restricted Subsidiary is in 57
the form of cash or Cash Equivalents, (aiii) except an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied: (A) if at the time of the Asset Disposition the Company has not yet achieved Profitable Operations, pro rata to a mandatory offer by the Issuers and the Company to purchase Securities at 101% of the Accreted Value thereof on the date of purchase, plus accrued and unpaid interest and Additional Amounts, if any, thereon, and the repayment of principal and accrued and unpaid interest, if any, under the Bank Credit Facility and (B) if at the time of the Asset Disposition the Company has achieved Profitable Operations, at the Company's option either to (1) the investment in or acquisition of Additional Assets within 365 days from the later of such Asset Disposition and the receipt of such Net Available Cash or (2) pro rata to a mandatory offer by the Issuers and the Company to purchase Securities at 101% of the Accreted Value thereof on the date of purchase plus accrued and unpaid interest and Additional Amounts, if any, thereon, and the repayment of principal and accrued and unpaid interest, if any, under the Bank Credit Facility; provided that the Issuers and the Company shall be required to purchase Indebtedness pursuant to clause (2) to the extent of the balance of such Net Available Cash after application in accordance with clause (1). The Issuers shall not be required to make an offer to purchase Securities pursuant to this covenant if the Net Available Cash available therefor (after application of the proceeds as provided in clause (A)) is less than U.S.$10 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Notwithstanding the foregoing provisions, Net Available Cash shall not be required to be applied in accordance herewith to the extent that the aggregate Net Available Cash from all Asset Dispositions which is are not applied in accordance with this Section 4.06(a) exceeds $10.0 covenant at any time does not exceed U.S.$10 million. Pending application Notwithstanding the foregoing, to the extent the Senior Note Indenture and the Senior Subordinated Note Indenture limits the repurchase of Net Available Cash pursuant Securities, the Issuers shall not be required to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtednessmake an offer hereunder for the repurchase of Securities. For the purposes of this Section 4.06(a)4.06, the following are will be deemed to be cash or cash equivalentscash: (1x) the assumption by transferee of Senior Indebtedness of the Company Company, the Issuers or any Restricted Subsidiary and the release of the Company Company, the Issuers or such any Restricted Subsidiary from all liability on such Senior Indebtedness in connection with such Asset Disposition and (2y) securities received by the Company Company, the Issuers or any Restricted Subsidiary from the transferee that are promptly (and in any event within 60 days) converted by the Company Company, the Issuers or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C4.06(a)(iii)(A) or (B)(2), the Company Issuers shall be required to purchase Securities tendered by the Holders pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price (the "Purchase Price") of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100101% of the accreted value thereof), without premiumAccreted Value thereof on the date of purchase, plus accrued but and unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser priceand Additional Amounts, if any, thereon to the Purchase Date (as may be provided for by the terms of such Senior Subordinated Indebtedness of the Companydefined below) in accordance with the procedures (including prorating prorationing in the event of over-subscriptionoversubscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes Issuers become obligated to make an Offer, the Company Issuers shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company Issuers either in whole or in part (subject to prorating prorationing as hereinafter described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 1 of principal amount, at the applicable purchase pricePurchase Price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company Issuers which the Company Issuers in good faith believes will enable such Holders to make an informed decision (which at a minimum will shall include (Ai) the most recently filed Annual Report on Form 10-K annual report (including audited consolidated financial statements) of the CompanyIssuers and any other information provided by the Issuers to its public shareholders generally on an annual basis, the most recent subsequently recently filed Quarterly Report on Form 10-Q Reports, and any Current Report on Form 8-K current reports of the Company Issuers filed subsequent to such Quarterly Report, other than Current Reports current reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (Bii) a description of material developments in the Company's Issuers' business subsequent to the date of the latest of such Reportsreports, and (Ciii) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained address referred to in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided belowabove, the Company Issuers shall deliver to the Trustee an Officers' Certificate as to (Ai) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (Bii) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (Ciii) the compliance -45- of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company Issuers shall also irrevocably deposit with the Trustee or with a the Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be invested at the written direction of the Issuers in Cash Equivalents and to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company Issuers shall deliver to the Trustee for cancellation the Securities or portions thereof which that have been properly tendered to and are to be accepted by the CompanyIssuers. The Trustee (or the Paying Agent, if not the Trustee) shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company Issuers to the Trustee is less than the Offer Amount applicable to the SecuritiesAmount, the Trustee shall deliver the excess to the Company immediately Issuers promptly after the expiration of the Offer Period for application in accordance with this Section 4.06Section.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate appropriate form duly completed, to the Company Issuers at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company Issuers receives not later than one Business Day prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Security purchased. If at the expiration of the Offer Period the aggregate principal amount of Securities surrendered by Holders exceeds the Offer Amount, the Issuers shall select the Securities to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Issuers so that only Securities in denominations of $1, or integral multiples thereof, shall be purchased). Holders whose Securities are purchased only in part shall will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Issuers deliver Securities to the Trustee which are to be accepted for purchase, the Company Issuers shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company Issuers pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company Issuers shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulationsthereof.
Appears in 1 contract
Samples: Indenture (NSM Steel Co LTD)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall KP Parent will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless unless:
(i) the consideration KP Parent or a Restricted Subsidiary receives for such Asset Disposition is not less than the fair market value of the assets sold (as determined by KP Parent’s Board of Directors); and
(ii) at least 75% of the consideration KP Parent or a Restricted Subsidiary receives in respect of such Asset Disposition consists of:
(A) cash (including any Net Cash Proceeds received from the conversion within 180 days of such Asset Disposition of securities, notes or other obligations received in consideration of such Asset Disposition);
(B) Cash Equivalents;
(C) the assumption by the purchaser of (x) any liabilities recorded on KP Parent’s or a Restricted Subsidiary’s balance sheet or the notes thereto (or, if Incurred since the date of the latest balance sheet, that would be recorded on the next balance sheet) (other than Subordinated Indebtedness or Indebtedness owed to KP Parent or a Restricted Subsidiary), as a result of which neither KP Parent nor any of the Restricted Subsidiaries remains obligated in respect of such liabilities or (y) Indebtedness of a Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, if KP Parent and each other Restricted Subsidiary is released from any guarantee of such Indebtedness as a result of such Asset Disposition;
(D) Replacement Assets;
(E) any Capital Stock or assets of the kind referred to in clause (iv) or (vi) of Section 4.05(b);
(F) consideration consisting of Indebtedness of KP Parent or any Guarantor received from Persons who are not KP Parent or any Restricted Subsidiary, but only to the extent that such Indebtedness (1) has been extinguished by KP Parent or the Company applicable Guarantor and (2) is not Subordinated Indebtedness of KP Parent or such Guarantor;
(G) any Designated Non-Cash Consideration received by KP Parent or any Restricted Subsidiary, having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section 4.05 that is at any one time outstanding, not to exceed the greater of €25.0 million and 2.0% of Total Assets (with the fair market value of each issue of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value); or
(H) a combination of the consideration specified in clauses (A) through (G) of this Section 4.05(a)(ii).
(b) If KP Parent or any Restricted Subsidiary consummates an Asset Disposition, the Net Cash Proceeds of the Asset Disposition, within 365 days (or 545 days in the circumstances described in Section 4.05(b)(viii)) of the later of (i) the date of the consummation of such Asset Disposition and (ii) the receipt of such Net Cash Proceeds, may be used by KP Parent or such Restricted Subsidiary receives consideration at the time to:
(i) prepay, repay, purchase or redeem any Indebtedness of such Asset Disposition at least equal KP Parent or any Restricted Subsidiary (other than Indebtedness owed to KP Parent or an Affiliate of KP Parent or that is by its terms subordinated to the fair market value (including as Notes or any Notes Guarantee); provided, however, that, in connection with any prepayment, repayment or redemption of Indebtedness pursuant to the value of all non-cash considerationthis Section 4.05(b)(i), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; (2) at least 80% of the consideration thereof received by the Company KP Parent or such Restricted Subsidiary is will retire such Indebtedness and will cause the related commitment (if any) to be reduced in 57an amount equal to the principal amount so prepaid, purchased or redeemed;
(aii) except purchase Notes pursuant to an offer to all Holders of the Notes at a purchase price in cash equal to at least 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Amounts, if any, to, but not including, the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date);
(iii) invest in any Replacement Assets;
(iv) acquire all or substantially all of the assets of, or any Capital Stock of, another Similar Business, if, after giving effect to any such acquisition of Capital Stock, the Similar Business is or becomes a Restricted Subsidiary;
(v) make a capital expenditure;
(vi) acquire other assets (other than Capital Stock and cash or Cash Equivalents) that are used or useful in a Similar Business;
(vii) consummate any combination of the foregoing; or
(viii) enter into a binding commitment to apply the Net Cash Proceeds pursuant to clause (i), (iii), (iv), (v) or (vi) of this Section 4.05(b) or a combination thereof; provided that, a binding commitment shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment until the earlier of (A) the date on which such investment is consummated and (B) the 180th day following the expiration of the aforementioned 365-day period, if the investment has not been consummated by that date.
(c) The amount of such Net Cash Proceeds not so used as set forth in Section 4.05(b) constitutes “Excess Proceeds”. Pending the final application of any such Net Cash Proceeds, KP Parent may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in any manner that is not prohibited by the terms of this Indenture.
(d) On the 366th day after an Asset Disposition (or the 546th day if a binding commitment in Section 4.05(b)(viii) has been entered into), or such earlier time as the Issuer elects, if the aggregate amount of Excess Proceeds exceeds €30.0 million, the Issuer will be required within 10 Business Days thereof to make an offer (the “Asset Disposition Offer”) to all Holders and, to the extent the Issuer elects, to all holders of other outstanding Pari Passu Indebtedness, to purchase the maximum principal amount of Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of the Notes and 100% of the principal amount of Pari Passu Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, in minimum denominations of €100,000 and in integral multiples of €1,000 in excess thereof in the case of the Notes.
(e) To the extent that the aggregate Net Available Cash from all Asset Dispositions which is amount of Notes and Pari Passu Indebtedness so validly tendered and not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash properly withdrawn pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires Offer is less than the purchase of Securities (and Excess Proceeds, KP Parent or the relevant Restricted Subsidiary may use any remaining Excess Proceeds for general corporate purposes, subject to other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, covenants contained in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c)this Indenture. If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness principal amount of the Company) tendered pursuant to the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Excess Proceeds shall select be allocated among the Securities Notes and other Senior Subordinated Pari Passu Indebtedness to be repaid or purchased on a pro rata basis but on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the principal amount of any such Indebtedness not denominated in round denominationseuro, such Indebtedness shall be calculated by converting any such principal amounts into their Euro Equivalent determined as of a date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(f) To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than the currency in which the Notes are denominated, the amount thereof payable in respect of such Notes shall not exceed the net amount of funds in the case currency in which such Notes are denominated that is actually received by KP Parent or the relevant Restricted Subsidiary upon converting such portion of the Securities Net Available Cash into such currency.
(g) The Asset Disposition Offer, insofar as it relates to the Notes, will be denominations remain open for a period of $1,000 not less than 20 Business Days following its commencement (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will repay the principal amount or multiples thereof. The Company shall not be of Notes and, to the extent it elects, Pari Passu Indebtedness required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) be repaid or purchased by it pursuant to this Section 4.06 4.05 (the “Asset Disposition Offer Amount”) or, if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an the Asset Disposition Offer is required with respect Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Net Available Cash from any subsequent Asset Disposition)Disposition Offer.
(1h) PromptlyOn or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee minimum denominations of €100,000 and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $€1,000 of principal amount, at the applicable purchase pricein excess thereof. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes Issuer will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Officer’s Certificate stating that such Securities are to be Notes or portions thereof were accepted for payment by the Company pursuant to and Issuer in accordance with the terms of this SectionSection 4.05. A Security shall be deemed The Issuer or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after termination of the Asset Disposition Offer Period) mail or deliver to have been accepted for purchase at the time the Trustee, directly or through each tendering Holder an agent, mails or delivers payment therefor amount equal to the surrendering purchase price of the Notes so validly tendered and not properly withdrawn by such Holder.
, and accepted by the Issuer for purchase, and the Issuer will promptly issue a new Note (dor amend the applicable Global Note), and the Trustee (or an Authenticating Agent), upon delivery of an Officer’s Certificate from the Issuer, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount with a minimum denomination of €100,000. Any Note not so accepted will be promptly mailed or delivered (or transferred by book entry) by the Issuer to the Holder thereof. The Company shall Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this SectionIndenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 4.05, the Company shall Issuer will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulationscompliance.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value (Fair Market Value, including as to the value of all non-cash consideration), as determined in good faith by the Board of DirectorsCompany, of the shares and assets subject to such Asset Disposition; ;
(2) at least 8075% of the consideration thereof from such Asset Disposition received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in 57the form of cash or Cash Equivalents; and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company or any one or more Restricted Subsidiaries:
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness), to prepay, repay or purchase Indebtedness of the Company (other than any Disqualified Stock or Subordinated Obligations) or Indebtedness of a Wholly Owned Subsidiary (other than any Disqualified Stock or Guarantor Subordinated Obligations of a Wholly Owned Subsidiary that is a Subsidiary Guarantor) (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 365 days from the later of the date of such Asset Disposition and the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; and
(ii) to the extent the Company or any Restricted Subsidiary elects, to invest in Additional Assets within 365 days from the later of the date of such Asset Disposition and the receipt of such Net Available Cash; provided that the Company and its Restricted Subsidiaries may make any combination of prepayment, repayment, purchase or investment permitted by clause (i) or clause (ii) above and, pending the final application of any such Net Available Cash in accordance with clause (i) or clause (ii) above or pursuant to an Asset Disposition Offer described below, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(b) Any Net Available Cash from Asset Dispositions that are not applied or invested as provided in Section 3.8(a) will be deemed to constitute “Excess Proceeds.” Within 30 days following the 365th day after an Asset Disposition, if the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders and to the extent required by the terms of other Pari Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”), to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Notes, as applicable, in each case in denominations of $2,000 and integral multiples of $1,000 in excess thereof. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate or other purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof and other Pari Passu Notes surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(c) The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the aggregate Net Available Cash from all “Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 millionDisposition Offer Period”). Pending application No later than five Business Days after the termination of Net Available Cash the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.06(a)3.8 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer.
(d) If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such Net Available Cash shall record date, and no additional interest will be invested payable to Holders who tender Notes pursuant to the Asset Disposition Offer.
(e) On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Notes so validly tendered and not properly withdrawn, in Temporary Cash Investments each case in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or applied portions thereof were accepted for payment by the Company in accordance with the terms of this Section 3.8 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after termination of the Asset Disposition Offer Period) mail or deliver to temporarily reduce revolving credit indebtednesseach tendering Holder or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Notes or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Note to such holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Notes in connection with the Asset Disposition Offer. Any Note not so accepted will be promptly mailed or delivered by the Company to the holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or before the Asset Disposition Purchase Date.
(f) For the purposes of this Section 4.06(a)3.8, the following are shall be deemed to be cash or cash equivalentscash: (1) the assumption by the transferee of Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the Company or Indebtedness of a Wholly Owned Subsidiary (other than Guarantor Subordinated Obligations or Disqualified Stock of any Restricted Wholly Owned Subsidiary that is a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition (in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with Section 3.8(a)(3)(i)); and (2) securities securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that that, within 180 days of receipt thereof, are promptly converted converted, sold or exchanged by the Company or such Restricted Subsidiary into or for cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(dg) The Company shall will comply, to the extent applicable, with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this SectionSection 3.8. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 3.8, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulationsany conflict.
Appears in 1 contract
Samples: Indenture (Cimarex Energy Co)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, ) of the shares and assets subject to such Asset Disposition; ;
(2) at least 8075% of the consideration thereof received by the Company or such Restricted Subsidiary is in 57the form of cash or cash equivalents; provided, however, that this clause (2) shall not apply to the sale or other disposition of the Company's diagnostic division; and
(a3) an amount equal to 100% of the Net Available Cash from such Asset Disposition, other than any Asset Disposition that constitutes (i) a Syndication or a resyndication transaction in the ordinary course of business or (ii) a Specified Sale/Leaseback Transaction, is applied by the Company (or such Restricted Subsidiary, as the case may be)
(A) to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or a Subsidiary Guarantor or Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(B) to the extent the Company elects (including with respect to the balance of such Net Available Cash after application (if any) in accordance with clause (A)), to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and
(C) to the extent of the balance of such Net Available Cash after application (if any) in accordance with clauses (A) and (B), to make an offer to the Holders of the Securities (and to holders of other Senior Indebtedness of the Company designated by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness made to satisfy clause (A) or (C) above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 4.06, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 4.06 except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) 4.06 exceeds $10.0 million20,000,000. Pending 50 application of Net Available Cash pursuant to this Section 4.06(a)4.06, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a)4.06, the following are deemed to be cash or cash equivalents: :
(1) the assumption or discharge of Indebtedness of any liabilities (as shown on the Company Company's or any such Restricted Subsidiary and Subsidiary's most recent balance sheet or in the release footnotes thereto) of the Company or such Restricted Subsidiary from (other than liabilities that are by their terms subordinated to the Securities) that are assumed by the transferee of such assets and for which the Company and all liability on such Indebtedness of the Restricted Subsidiaries have been released by all creditors in connection with such Asset Disposition and writing;
(2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary within 180 days into cash, to the extent of cash received in that conversion;
(3) all Temporary Cash Investments; and
(4) any Designated Noncash Consideration having an aggregate Fair Market Value that, when taken together with all other Designated Noncash Consideration previously received and then outstanding, does not exceed at the time of the receipt of such Designated Noncash Consideration (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value) $30,000,000.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the CompanyIndebtedness) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), ) without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated IndebtednessIndebtedness of the Company, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the CompanyIndebtedness) in accordance with the procedures (including prorating in the event of over-subscriptionoversubscription) set forth in Section 4.06(c)this Indenture. If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) securities tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness securities to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make such an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million 20,000,000 (which lesser amount shall be carried forward for purposes of determining whether such an Offer offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon completion of such an Offer, Net Available Cash shall be deemed to be reduced by the aggregate amount of such Offer.
(1i) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, amount at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2ii) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the OfferOffer for repurchase, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such dateBy 11:00 a.m. New York City time on the Purchase Date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company or a Wholly Owned Subsidiary is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation cancelation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3iii) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders A Holder shall be entitled to withdraw their its election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the such Holder, the principal amount of the Security which that was delivered for purchase by the such Holder and a statement that such Holder is withdrawing his its election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4iv) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.this
Appears in 1 contract
Samples: Indenture (Healthsouth Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company Issuer shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectlyconsummate an Asset Disposition, consummate any Asset Disposition unless unless:
(1) the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, Fair Market Value of the shares and assets subject sold or otherwise disposed of (measured as of the date of the definitive agreement with respect to such Asset Disposition); and
(2) at least 8075% of the consideration thereof therefor received by the Company Issuer or such Restricted Subsidiary is in 57
Subsidiary, as the case may be (a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a)which, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the for purposes of this Section 4.06(aclause (2), consideration will not include any contingent payment obligations related to such Asset Disposition, including, earn-out payments, purchase price adjustments and deferred purchase price payments), is in the following are deemed to be form of cash or cash equivalents: Cash Equivalents; provided that the amount of:
(1A) any liabilities, as shown on the assumption of Indebtedness Issuer’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto, of the Company Issuer or any of its Restricted Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) (i) that are assumed by the transferee of any such assets, or (ii) in respect of which neither the Issuer nor any Restricted Subsidiary and following such Asset Disposition has any obligation;
(B) any securities or other obligations received by the release of the Company Issuer or such Restricted Subsidiary from all liability on such Indebtedness transferee that are converted by the Issuer or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Disposition;
(C) any Capital Stock, properties or assets of the kind referred to in Section 4.11(b)(2);
(D) cash held in escrow as security for any purchase price settlement, for damages in respect of a breach of representations and warranties or covenants or for payment of other contingent obligations in connection with such Asset Disposition and Disposition; and
(2E) securities any Designated Noncash Consideration received by the Company Issuer or any Restricted Subsidiary from in such Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the transferee that are promptly converted by greater of (x) $20.0 million and (y) 2.0% of the Company or Total Assets of the Issuer at the time of the receipt of such Restricted Subsidiary into cashDesignated Noncash Consideration, with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value, in each case, shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) In Within 365 days after the receipt of any Net Cash Proceeds of any Asset Disposition, the Issuer or such Restricted Subsidiary, at its option, may apply the Net Cash Proceeds from such Asset Disposition to one or more of the following, or any combination,
(1) to reduce or repay:
(A) Indebtedness under the Credit Facility and (i) permanently repay any term loans thereunder or (ii) reduce the revolving commitments, if any, thereunder; or
(B) to the extent the property that is subject to such Asset Disposition was sold by a non-Guarantor Subsidiary, Indebtedness of a non-Guarantor Subsidiary, other than Indebtedness owed to the Issuer or another Restricted Subsidiary; or
(2) to make (A) an Investment in any one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock of a Restricted Subsidiary or results in the Issuer or its Restricted Subsidiaries owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (B) capital expenditures in respect of the Issuer, its Restricted Subsidiaries or their respective assets or (C) acquisitions of other properties or assets to be held by the Issuer or its Restricted Subsidiaries (including assets that replace the business, properties and assets of the Issuer or any of its Restricted Subsidiaries that were the subject of such Asset Disposition), in the case of each of (A), (B) and (C), used or useful in a Related Business;
(3) to reduce or repay Pari Passu Payment Lien Obligations, provided, that if the Issuer or any Restricted Subsidiary shall so reduce Pari Passu Payment Lien Obligations, the Issuer shall equally and ratably reduce Obligations under the Notes in accordance with the provisions set forth under Section 3.07, through open market purchases of the Notes or through an offer to purchase Notes (in accordance with the procedures set forth below for an Asset Disposition Offer); provided, that all Net Cash Proceeds used to make such an offer to purchase shall be deemed to have been so applied whether or not accepted by the Holders; or
(4) to reduce or repay Obligations under the Notes in accordance with the provision set forth under Section 3.07, through open market purchases of the Notes or through an offer to purchase Notes (in accordance with the procedures set forth below for an Asset Disposition Offer); provided, that all Net Cash Proceeds used to make such an offer to purchase shall be deemed to have been so applied whether or not accepted by the Holders; provided that a binding commitment to apply Net Cash Proceeds as set forth in Section 4.11(b)(2) shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment so long as the Issuer or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 180 days of the end of such 365-day period (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Cash Proceeds are applied in connection therewith, then the Issuer or such Restricted Subsidiary shall be permitted to apply the Net Cash Proceeds in any manner set forth above before the expiration of such 180-day period and, in the event the Issuer or such Restricted Subsidiary fails to do so, then such Net Cash Proceeds shall constitute Excess Proceeds (as defined below).
(c) Any Net Cash Proceeds from an Asset Disposition that requires are not invested or applied as provided and within the purchase of Securities (and other Senior Subordinated Indebtedness time period set forth in Section 4.11(b) will be deemed to constitute “Excess Proceeds”. The Issuer shall make an offer to all Holders of the CompanyNotes (an “Asset Disposition Offer”) pursuant and all holders of Pari Passu Payment Lien Obligations containing provisions similar to Section 4.06(a)(3)(Cthose set forth in this Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem the maximum aggregate principal amount of the Notes (equal to $2,000 or integral multiples of $1,000 in excess thereof) and such Pari Passu Payment Lien Obligations (plus all accrued interest on such Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith), that may be purchased out of the Company shall purchase Securities tendered pursuant to Excess Proceeds at an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of in cash in an amount equal to 100% of their the principal amount thereof (or, in the event such other Senior Subordinated Indebtedness of the Company was Pari Passu Payment Lien Obligations were issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but and unpaid interest (orto, in respect but not including, the date fixed for the closing of such other Senior Subordinated Indebtednessoffer (subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date), such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in this Indenture or the agreements governing such Pari Passu Payment Lien Obligations, as applicable. The Issuer shall commence an Asset Disposition Offer with respect to Excess Proceeds within 30 days after the date that Excess Proceeds exceed $30.0 million by delivering the notice required pursuant to Section 4.06(c3.10, with a copy to the Trustee. The Issuer may, at its election, satisfy the foregoing obligations with respect to any Net Cash Proceeds from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Cash Proceeds prior to the expiration of the relevant 365-day period (or such longer period provided above).
(d) To the extent that the aggregate amount of Notes and Pari Passu Payment Lien Obligations tendered pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for any purpose not prohibited by this Indenture. If the aggregate purchase price principal amount of Securities (Notes and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer Pari Passu Payment Lien Obligations surrendered by such holders thereof exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Trustee shall select the Securities Notes and other Senior Subordinated Indebtedness the applicable agent or the Issuer shall select such Pari Passu Payment Lien Obligations to be purchased on a pro rata basis but in round denominationsbasis, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration applicable procedures of the period for which the Offer remains open (the "Offer Period")Depositary, the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, based on the Purchase Date, mail accreted value or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement Notes tendered (with adjustments as necessary so that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only no Notes will be repurchased in part in an unauthorized denomination) or such Pari Passu Payment Lien Obligations tendered. Upon completion of any such Asset Disposition Offer, the amount of Excess Proceeds that resulted in the Asset Disposition Offer shall be issued new Securities equal in principal amount reset to the unpurchased portion of the Securities surrenderedzero.
(4e) At Pending the time the Company delivers Securities to the Trustee which are to be accepted for purchasefinal application of any Excess Proceeds, the Company shall also deliver an Officers' Certificate stating Issuer (or the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Excess Proceeds in any manner that such Securities are to be accepted is not prohibited by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering HolderIndenture.
(df) The Company Issuer shall comply, to the extent applicable, comply with the requirements of Section 14(e) of Rule 14e-l under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the purchase repurchase of Securities the Notes pursuant to this Sectionan Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this SectionIndenture, the Company Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under described in this Section Indenture by virtue of its compliance with such securities laws or regulationsthereof.
Appears in 1 contract
Samples: Indenture
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at (both cash and non cash) equal to not less than the time Fair Market Value (such Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, Disposition) of the shares and assets subject to such Asset Disposition; ;
(2) at least 8075% of the consideration thereof from such Asset Disposition received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in 57the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:
(a) except to any liabilities (as shown on the extent that face of the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(aCompany’s or such Restricted Subsidiary’s then most recent balance sheet), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the release transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and further liability;
(2b) securities any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from the such transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness) to prepay, repay or purchase Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or any Restricted Subsidiary, as the case may be, elects, to invest in Replacement Assets within the applicable Application Period; and
(b) In second, to the event extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and or such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser priceearlier date, if any, as may the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be provided for applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (an “Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Subordinated Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Company) Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (including prorating provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the event case of over-subscription) set forth Pari Passu Notes, in Section 4.06(c)such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate purchase price principal amount of Securities (Notes and any other Senior Subordinated Indebtedness of the Company) Pari Passu Notes validly tendered and not properly withdrawn pursuant to the an Asset Disposition Offer exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Trustee, in accordance with (in the case of Global Notes) the applicable procedures of the Depository, shall select the Securities Notes and other Senior Subordinated Indebtedness the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis but in round denominations, which in on the case basis of the Securities will be denominations of $1,000 aggregate principal amount or multiples thereofof such tendered Notes and Pari Passu Notes. The Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company shall not be will purchase the principal amount of Notes and Pari Passu Notes required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) be purchased pursuant to this Section 4.06 4.15 (the “Asset Disposition Offer Amount”) or, if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an the Asset Disposition Offer is required with respect Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after Disposition Offer. Upon the Company becomes obligated to make commencement of an Asset Disposition Offer, the Company shall deliver send, by first class mail, a notice to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase priceits registered address. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to enable such Holder to tender Securities Notes pursuant to the Asset Disposition Offer. Any Asset Disposition Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Disposition Offer, together with shall state:
(1) that the information contained in clause (3).Asset Disposition Offer is being made pursuant to this Section 4.15;
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Disposition Offer Amount to be held for payment in accordance with and the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Asset Disposition Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Security Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the SecurityNote, with an appro- priate the form duly entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three Business Days prior to days before the Asset Disposition Purchase Date. ;
(7) that Holders shall be entitled to withdraw their election if the Trustee Company, the Depository or the Company receives Paying Agent, as the case may be, receives, not later than one Business Day the second business day prior to the Asset Disposition Purchase Date, a telex, facsimile transmission or letter notice setting forth the name of the Holder, the principal amount of the Security which was Note the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security Note purchased. ;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) that Holders whose Securities are Notes were purchased only in part shall be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities surrendered.Notes surrendered (or transferred by book-entry transfer); and
(410) At all other procedures, if any, determined by the time Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Company delivers Securities will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of such Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' ’ Certificate stating that such Securities are to be Notes or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this SectionSection 4.15 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. A Security The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after termination of the Asset Disposition Offer Period) mail or deliver to each tendering Holder of Notes or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Notes or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Note not so accepted will be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have been accepted sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purchase at purposes of this Section 4.15, and shall comply with the time provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Trustee, directly Fair Market Value of such properties and assets of the Company or through an agent, mails or delivers payment therefor its Restricted Subsidiaries deemed to the surrendering Holder.
(d) be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company shall will comply, to the extent applicable, with the requirements of Section Rule 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this SectionSection 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 4.15, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulationsany conflict.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such a Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as such Fair Market Value to be determined on the value date of all non-cash consideration), as determined in good faith by the Board of Directors, contractually agreeing to such Asset Disposition) of the shares and Capital Stock or other assets subject to such Asset Disposition; and
(2) (a) at least 8075% of the aggregate consideration thereof received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, from such Asset Disposition is in 57
the form of cash or Cash Equivalents or Additional Assets, or any combination thereof or (b) the Fair Market Value of all forms of consideration other than those in clause (a) except to since the extent that Issue Date does not exceed in the aggregate 10% of the Company’s Adjusted Consolidated Net Available Cash from all Asset Dispositions which Tangible Assets measured at the time the determination is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtednessmade. For the purposes of clause (2) of the first paragraph of this Section 4.06(a)3.5 and for no other purposes, the following are will be deemed to be cash or cash equivalents: cash:
(1) the assumption by the transferee of Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the Company or Indebtedness of a Restricted Subsidiary (other than Guarantor Subordinated Obligations or Disqualified Stock of any Restricted Subsidiary that is a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with clause (3)(a) of the first paragraph of this covenant);
(2) securities with respect to any Asset Disposition of oil and gas properties by the Company or any Restricted Subsidiary, the costs and expenses related to the exploration, development, completion or production of such properties and activities related thereto that the transferee (or an Affiliate thereof) has agreed to pay; and
(3) securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company into cash within 180 days after receipt thereof. Notwithstanding the foregoing, the 75% limitation referred to in clause (2) of the first paragraph of this Section 3.5 shall be deemed satisfied with respect to any Asset Disposition in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with the foregoing provision on an after-tax basis, is equal to or greater than what the after-tax proceeds would have been had such Asset Disposition complied with the aforementioned 75% limitation, provided that the foregoing provision shall only be effective during any period in which the Company is subject to and pays corporate U.S. federal income taxes. Within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, an amount equal to 100% of the Net Available Cash from such Asset Disposition may be applied by the Company or a Restricted Subsidiary, as the case may be, as follows:
(a) to prepay, repay, redeem or purchase Pari Passu Indebtedness of the Company (including the Securities) or a Subsidiary Guarantor or any Indebtedness (other than Disqualified Stock) of a Non-Guarantor Subsidiary (in each case, excluding Indebtedness owed to the Company or an Affiliate of the Company); provided, however, that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary into cash.will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; or
(b) In to invest in Additional Assets; provided that pending the event final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. The requirement of clause (3)(b) of the preceding paragraph of this covenant above shall be deemed to be satisfied if an agreement (including a lease, whether a capital lease or an operating lease) committing to make the acquisitions or expenditures referred to therein is entered into by the Company or a Restricted Subsidiary within the specified time period and such Net Available Cash is subsequently applied in accordance with such agreement within six months following such agreement. Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in the preceding paragraph will be deemed to constitute “Excess Proceeds.” Not later than the 366th day from the later of the date of such Asset Disposition that requires or the purchase receipt of Securities (and other Senior Subordinated Indebtedness such Net Available Cash, if the aggregate amount of the Company) pursuant to Section 4.06(a)(3)(C)Excess Proceeds exceeds $25.0 million, the Company shall purchase Securities tendered pursuant to make an offer (an “Asset Disposition Offer”) to all Holders of Securities and, to the extent required by the terms of other Pari Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the Company for to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Securities”) to purchase, on a pro rata basis, the maximum principal amount of Securities (and any such other Senior Subordinated Indebtedness Pari Passu Securities to which the Asset Disposition Offer applies that may be purchased out of the Company) (the "Offer") Excess Proceeds, at a purchase an offer price of in cash in an amount equal to 100% of their the principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was Pari Passu Securities were issued with significant original issue discount, 100% of the accreted value thereof), without premium, ) of the Securities and Pari Passu Securities plus accrued but and unpaid interest interest, if any (or, or in respect of such other Senior Subordinated Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness Indebtedness), to the date of purchase (subject to the Company) right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date), in accordance with the procedures (including prorating in the event of over-subscription) set forth in this Section 4.06(c)3.5 or the agreements governing the Pari Passu Securities, as applicable, in each case in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000; provided that if, following repurchase of a portion of a Security, the remaining principal amount of such Security outstanding immediately after such repurchase would be less than $2,000, then the portion of such Security so repurchased shall be reduced so that the remaining principal amount of such Security outstanding immediately after such repurchase is $2,000. If The Company shall commence an Asset Disposition Offer with respect to Excess Proceeds by mailing (or otherwise communicating in accordance with the aggregate purchase price applicable procedures of Securities (and any other Senior Subordinated Indebtedness of DTC) the Company) tendered notice required pursuant to the terms of this Indenture, with a copy to the Trustee. To the extent that the aggregate amount of Securities and Pari Passu Securities so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer exceeds is less than the Net Available Cash allotted to their purchaseExcess Proceeds, the Company or any Restricted Subsidiary may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. To the extent the aggregate principal amount of Securities validly tendered and not properly withdrawn by Holders thereof exceeds the amount of Excess Proceeds allocated on a pro rata basis to the purchase of the Securities, the Trustee shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 aggregate principal amount or multiples thereofof tendered Securities and in accordance with DTC’s applicable procedures. The selection of such Pari Passu Securities to be purchased shall be made pursuant to the terms of such Pari Passu Securities. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company shall not be will purchase the principal amount of Securities and Pari Passu Securities required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) be purchased pursuant to this Section 4.06 3.5 (the “Asset Disposition Offer Amount”) or, if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an the Asset Disposition Offer is required with respect Amount has been so validly tendered and not properly withdrawn, all Securities and Pari Passu Securities validly tendered and not properly withdrawn in response to the Net Available Cash from Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related interest payment date, any subsequent Asset Disposition).
(1) Promptlyaccrued and unpaid interest, if any, will be paid to the Person in whose name a Security is registered at the close of business on such record date, and in any event within 10 days after no further interest will be payable to Holders who tender Securities pursuant to the Company becomes obligated to make an Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Company shall deliver will, to the Trustee extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Securities and sendPari Passu Securities or portions of Securities and Pari Passu Securities so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, by first-class mail to or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Securities and Pari Passu Securities so validly tendered and not properly withdrawn, in each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either case in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000; provided that if, following the repurchase of a portion of a Security, the remaining principal amountamount of such Security outstanding immediately after such repurchase would be less than $2,000, at then the applicable purchase priceportion of such Security so repurchased shall be reduced such that the remaining principal amount of such Security outstanding immediately after such repurchase is $2,000. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' ’ Certificate stating that such Securities are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this SectionSection 3.5 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Securities. A Security shall be deemed The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Disposition Offer Period) mail (or otherwise deliver in accordance with the applicable procedures of DTC) to have been each tendering Holder of Securities or holder or lender of Pari Passu Securities, as the case may be, an amount equal to the purchase price of the Securities or Pari Passu Securities so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase at purchase, and the time Company will promptly issue a new Security, and the Trustee, directly upon receipt of a Company Order, will authenticate and mail or through deliver such new Security to such Holder, in a principal amount equal to any unpurchased portion of the Security surrendered; provided that each such new Security will be in a minimum principal amount of $2,000 or an agentintegral multiple of $1,000 in excess of $2,000. In addition, mails the Company will take any and all other actions required by the agreements governing the Pari Passu Securities. Any Security not so accepted will be promptly mailed or delivers payment therefor delivered by the Company to the surrendering Holder.
(d) Holder thereof. The Company shall will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date. The Company will comply, to the extent applicable, with the requirements of Section 14(e) Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities pursuant to this Sectionan Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 3.5, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulations. The Company will not, and will not permit any Restricted Subsidiary to, engage in any Asset Swaps, unless:
(1) at the time of entering into such Asset Swap and immediately after giving effect to such Asset Swap, no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(2) the Company receives Fair Market Value in such Asset Swap (which shall have been determined by the Board of Directors of the Company to the extent required by the definition of “Fair Market Value”).
Appears in 1 contract
Samples: Indenture (Warren Resources Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time (including by way of such Asset Disposition relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (including as such fair market value to be determined on the value date of all non-cash considerationcontractually agreeing to such Asset Disposition), as determined in good faith by the Board of DirectorsCompany, of the shares and assets subject to such Asset Disposition; Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap);
(2) in any such Asset Disposition (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 8075% of the consideration thereof from such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis), (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in 57the form of cash or Cash Equivalents; and
(3) within 455 days from the later of (A) the date of such Asset Disposition and (B) the receipt of the Net Available Cash from such Asset Disposition (as may be extended by an Acceptable Commitment or a Second Commitment as set forth below, the “Proceeds Application Period”), an amount equal to 100% of such Net Available Cash is applied, to the extent the Company or any Restricted Subsidiary, as the case may be, elects:
(i) (a) to reduce, prepay, repay or purchase any Secured Indebtedness, including Indebtedness under the Credit Agreement (or any Refinancing Indebtedness in respect thereof), (b) to reduce, prepay, repay or purchase Pari Passu Indebtedness; provided that the Company ratably repay the Notes, (c) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer), redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, or (d) to reduce, prepay, repay or purchase any Indebtedness of a Non-Guarantor (in each case, other than Indebtedness owed to the Company or any Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (i), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to be reduced in an amount equal to the principal amount so reduced, prepaid, repaid or purchased;
(a) except to invest (including capital expenditures) in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary); or (b) to invest (including capital expenditures) in any one or more businesses (provided that any such business will be a Restricted Subsidiary), properties or assets that replace the extent businesses, properties and/or assets that are the aggregate subject of such Asset Disposition, with any such investment made by way of a capital or other lease valued at the present value of the minimum amount of payments under such lease (as reasonably determined by the Company); provided, however, that a binding agreement shall be treated as a permitted application of Net Available Cash from all Asset Dispositions which the date of such commitment with the good faith expectation that an amount equal to Net Available Cash will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event of any Acceptable Commitment is not later cancelled or terminated for any reason before such amount is applied in accordance with this Section 4.06(aconnection therewith, the Company or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) exceeds $10.0 million. Pending within 180 days of such cancellation or termination; provided, further, that if any Second Commitment is later cancelled or terminated for any reason before such amount is applied, then such Net Available Cash shall constitute Excess Proceeds; or
(iii) any combination of the foregoing; provided that (1) pending the final application of the amount of any such Net Available Cash pursuant to this Section 4.06(a)Section 3.5, the Company or the applicable Restricted Subsidiaries may apply such Net Available Cash temporarily to reduce Indebtedness (including under the Senior Credit Facilities) or otherwise apply such Net Available Cash in any manner not prohibited by this Indenture and (2) the Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in Temporary accordance with clause (ii) above with respect to such Asset Disposition. If, with respect to any Asset Disposition, at the expiration of the Proceeds Application Period with respect to such Asset Disposition, there remains Net Available Cash Investments in excess of the greater of $80.0 million and 10.0% of LTM EBITDA (such amount, “Excess Proceeds”), then subject to the limitations with respect to Foreign Dispositions set forth below, the Company shall make an offer (an “Asset Disposition Offer”) no later than ten (10) Business Days after the expiration of the Proceeds Application Period to all Holders of Notes and, if required by the terms of any Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, to purchase the maximum principal amount of such Notes and Pari Passu Indebtedness, as appropriate, on a pro rata basis, that may be purchased out of such Excess Proceeds, if any, at an offer price, in the case of the Notes, in cash in an amount equal to 100% of the principal amount thereof (or in the event such other Indebtedness was issued with original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest, if any (or such lesser price with respect to Pari Passu Indebtedness, if any, as may be provided by the terms of such other Indebtedness), to, but not including, the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture and the agreement governing the Pari Passu Indebtedness, as applicable, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. Notices of an Asset Disposition shall be sent by first class mail or sent electronically, at least ten (10) days but not more than 60 days before the purchase date to each Holder of the Notes at such Holder’s registered address or otherwise in accordance with the applicable procedures of DTC. The Company may satisfy the foregoing obligation with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer prior to the expiration of the Proceeds Application Period (the “Advance Offer”) with respect to all or a part of the Net Available Cash (the “Advance Portion”) in advance of being required to do so by this Indenture.
(b) To the extent that the aggregate amount (or accreted value, as applicable) of Notes and, if applicable, any other Pari Passu Indebtedness validly tendered or otherwise surrendered in connection with an Asset Disposition Offer is less than the amount offered in an Asset Disposition Offer (or, in the case of an Advance Offer, the Advance Portion), the Company may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) (the “Declined Excess Proceeds”) for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of the Notes or, if applicable, Pari Passu Indebtedness validly tendered pursuant to any Asset Disposition Offer exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Company shall allocate the Excess Proceeds among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount (or accreted value, as applicable) of tendered Notes and Pari Passu Indebtedness; provided that no Notes or other Pari Passu Indebtedness will be selected and purchased in an unauthorized denomination. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than Dollars, the amount thereof payable in respect of the Notes shall not exceed the net amount of funds in Dollars that is actually received by the Company upon converting such portion into Dollars.
(c) Notwithstanding any other provisions of this Section 3.5,
(i) to the extent that any of or all the Net Available Cash of any Asset Disposition are received or deemed to be received by a Foreign Subsidiary (a “Foreign Disposition”) is (x) prohibited or delayed by applicable local law, (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous organizational or administrative impediments from being repatriated to the United States, the portion of such Net Available Cash so affected will not be required to be applied in compliance with this Section 3.5, and such amounts may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law documents or agreements will not permit repatriation to temporarily reduce revolving credit indebtednessthe United States (the Company hereby agreeing to use reasonable efforts (as determined in the Company’s reasonable business judgment) to otherwise cause the applicable Foreign Subsidiary to within one year following the date on which the respective payment would otherwise have been required, promptly take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation), and if within one year following the date on which the respective payment would otherwise have been required such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, applicable organizational impediment or other impediment, such repatriation will be promptly effected and the amount of such repatriated Net Available Cash will be promptly (and in any event not later than five (5) Business Days after such repatriation could be made) applied (net of additional Taxes payable or reserved against as a result thereof) (whether or not repatriation actually occurs) in compliance with this Section 3.5; and
(ii) to the extent that the Company has determined in good faith that repatriation of any of or all the Net Available Cash of any Foreign Disposition would have an adverse Tax consequence (which for the avoidance of doubt, includes, but is not limited to, any prepayment out of any such Net Available Cash whereby doing so the Company, any of its Subsidiaries, any Parent Entity or any of their respective affiliates and/or equity owners would incur a Tax liability, including a Tax dividend, deemed dividend pursuant to Code Section 956 or a withholding Tax), the Net Available Cash so affected may be retained by the applicable Foreign Subsidiary. The nonapplication of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default.
(d) For the purposes of this Section 4.06(a)Section 3.5(a)(2) hereof, the following are will be deemed to be cash or cash equivalents: cash:
(1) the assumption by the transferee of Indebtedness or other liabilities, contingent or otherwise of the Company or a Restricted Subsidiary (other than Subordinated Indebtedness of the Company or any Restricted Subsidiary and a Guarantor) or the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition and Disposition;
(2) securities securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.cash or Cash Equivalents, or by their terms are required to be satisfied for cash and Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within 180 days following the closing of such Asset Disposition;
(b3) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the Company) pursuant to Section 4.06(a)(3)(C), extent that the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition;
(and such other Senior Subordinated Indebtedness 4) consideration consisting of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior than Subordinated Indebtedness, such lesser price, if any, as may be provided for ) received after the Issue Date from Persons who are not the Company or any Restricted Subsidiary; and
(5) any Designated Non-Cash Consideration received by the terms of Company or any Restricted Subsidiary in such Senior Subordinated Indebtedness of the Company) in accordance Asset Dispositions having an aggregate fair market value, taken together with the procedures (including prorating in the event of overall other Designated Non-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) Consideration received pursuant to this Section 4.06 if Section 3.5 that is at that time outstanding, not to exceed the Net Available greater of $160.0 million and 20.0% of LTM EBITDA (with the fair market value of each item of Designated Non-Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect Consideration being measured at the time received and without giving effect to the Net Available Cash from any subsequent Asset Dispositionchanges in value).
(1e) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws laws, rules or regulations regulations, including Rule 14e-1 under the Exchange Act, conflict with the provisions of this SectionIndenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under described in this Section Indenture by virtue of its compliance therewith.
(f) The provisions of this Indenture relative to the Company’s obligation to make an offer to repurchase the Notes as a result of an Asset Disposition may be waived or modified with such securities laws or regulationsthe written consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as such Fair Market Value to be determined on the value date of all non-cash consideration), as determined in good faith by the Board of Directors, contractually agreeing to such Asset Disposition) of the shares and or other assets subject to such Asset Disposition; and
(2) at least 8075% of the aggregate consideration thereof received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, from such Asset Disposition and all other Asset Dispositions since the Issue Date, on a cumulative basis, is in 57the form of cash or Cash Equivalents or Additional Assets, or any combination thereof.
(ab) The Net Available Cash from such Asset Disposition may be applied, within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, by the Company or such Restricted Subsidiary, as the case may be:
(1) to prepay, repay, redeem or purchase Indebtedness of the Company (including the Notes) or a Subsidiary Guarantor (other than Subordinated Obligations, Guarantor Subordinated Obligations or Disqualified Stock) or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor (in each case, excluding Indebtedness owed to the Company or an Affiliate of the Company); provided, however, that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause (c), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; or
(2) to make capital expenditures in the Oil and Gas Business or to invest in or acquire Additional Assets;
(c) Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in Section 4.13(b) will be deemed to constitute “Excess Proceeds.” Not later than the 366th day from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Pari Passu Indebtedness or Indebtedness secured by Prior Liens (collectively, “Subject Debt”), to all holders of Subject Debt outstanding with similar provisions requiring the Company to make an offer to purchase such Subject Debt with the proceeds from any Asset Disposition to purchase the maximum principal amount of Notes and any such Subject Debt to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount (or, in the event such Subject Debt was issued with significant original issue discount, 100% of the accreted value thereof) of the Notes and Subject Debt plus accrued and unpaid interest, if any (or in respect of such Subject Debt, such lesser price, if any, as may be provided for by the terms of such Indebtedness), to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture or the agreements governing the Subject Debt, as applicable, in each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000. If the aggregate principal amount of Notes surrendered by Holders thereof and other Subject Debt surrendered by Holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Subject Debt. To the extent that the aggregate principal amount of Notes and Subject Debt so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to Articles Four and Five of this Indenture. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(d) The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the aggregate Net Available Cash from all “Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 millionDisposition Offer Period”). Pending application No later than five Business Days after the termination of Net Available Cash the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Subject Debt required to be purchased pursuant to this Section 4.06(a)4.13 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered and not properly withdrawn, all Notes and Subject Debt validly tendered and not properly withdrawn in response to the Asset Disposition Offer.
(e) If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such Net Available Cash shall record date, and no further interest will be invested payable to Holders who tender Notes pursuant to the Asset Disposition Offer.
(f) On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Subject Debt or portions of Notes and Subject Debt so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Subject Debt so validly tendered and not properly withdrawn, in Temporary Cash Investments each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or applied portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.13 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Subject Debt. The Company or the paying agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Disposition Offer Period) mail or deliver to temporarily reduce revolving credit indebtednesseach tendering Holder of Notes or holder or lender of Subject Debt, as the case may be, an amount equal to the purchase price of the Notes or Subject Debt so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided, that each such new Note will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess of $2,000. In addition, the Company will take any and all other actions required by the agreements governing the Subject Debt. Any Note not so accepted will be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date.
(g) The Company will comply, to the extent applicable, with the requirements of Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to an Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.13, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of its compliance with such securities laws or regulations.
(h) For the purposes of this clause (2) of Section 4.06(a)4.13(a) above, the following are will be deemed to be cash or cash equivalents: cash:
(1) the assumption by the transferee of Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the Company or Indebtedness of a Restricted Subsidiary (other than Guarantor Subordinated Obligations or Disqualified Stock of any Restricted Subsidiary that is a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with Section 4.13(b)(1)); and
(2) securities securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
cash within 180 days after receipt thereof. Notwithstanding the foregoing, the 75% limitation referred to in clause (b2) In the event of an Section 4.13(a) above shall be deemed satisfied with respect to any Asset Disposition that requires in which the purchase of Securities (and other Senior Subordinated Indebtedness cash or Cash Equivalents portion of the Company) pursuant to Section 4.06(a)(3)(C)consideration received therefrom, the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) determined in accordance with the procedures (including prorating in foregoing provision on an after-tax basis, is equal to or greater than what the event of overafter-subscription) set forth in Section 4.06(c). If tax proceeds would have been had such Asset Disposition complied with the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition)aforementioned 75% limitation.
(1i) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples The requirement of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a4.13(b) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security above shall be deemed to have been accepted for purchase at be satisfied if an agreement (including a lease, whether a capital lease or an operating lease) committing to make the time the Trustee, directly acquisitions or through an agent, mails or delivers payment therefor expenditures referred to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, therein is entered into by the Company shall comply with or its Restricted Subsidiary within the applicable securities laws specified time period and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance such Net Available Cash is subsequently applied in accordance with such securities laws or regulationsagreement within six months following such agreement.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as such Fair Market Value to be determined on the value date of all non-cash consideration), as determined in good faith by the Board of Directors, contractually agreeing to such Asset Disposition) of the shares and or other assets subject to such Asset Disposition; and
(2) at least 8075% of the aggregate consideration thereof received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, from such Asset Disposition and all other Asset Dispositions since the Issue Date, on a cumulative basis, is in 57the form of cash or Cash Equivalents or Additional Assets, or any combination thereof.
(b) The Net Available Cash from such Asset Disposition may be applied, within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, by the Company or such Restricted Subsidiary, as the case may be:
(1) to prepay, repay, redeem or purchase Pari Passu Indebtedness of the Company (including the Notes) or a Subsidiary Guarantor or any Indebtedness (other than Disqualified Stock) of a Restricted Subsidiary that is not a Subsidiary Guarantor (in each case, excluding Indebtedness owed to the Company or an Affiliate of the Company); provided, however, that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; or
(2) to make capital expenditures in the Oil and Gas Business or to invest in Additional Assets; provided, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) of this Section 4.11, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(c) Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in Section 4.11(b) will be deemed to constitute “Excess Proceeds.” Not later than the 366th day from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Pari Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount (or, in the event such Pari Passu Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof) of the Notes and Pari Passu Notes plus accrued and unpaid interest, if any (or in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Indebtedness), to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Notes, as applicable, in each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000. If the aggregate principal amount of Notes surrendered by Holders thereof and other Pari Passu Notes surrendered by Holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Notes. To the extent that the aggregate principal amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to the Articles Four and Five of this Indenture. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(d) The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the aggregate Net Available Cash from all “Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 millionDisposition Offer Period”). Pending application No later than five Business Days after the termination of Net Available Cash the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.06(a)4.11 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered and not properly withdrawn, all Notes and Pari Passu Notes validly tendered and not properly withdrawn in response to the Asset Disposition Offer.
(e) If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such Net Available Cash shall record date, and no further interest will be invested payable to Holders who tender Notes pursuant to the Asset Disposition Offer.
(f) On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Notes so validly tendered and not properly withdrawn, in Temporary Cash Investments each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or applied portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.11 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. The Company or the paying agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Disposition Offer Period) mail or deliver to temporarily reduce revolving credit indebtednesseach tendering Holder of Notes or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Notes or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided, that each such new Note will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess of $2,000. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Note not so accepted will be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date.
(g) The Company will comply, to the extent applicable, with the requirements of Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to an Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.11, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of its compliance with such securities laws or regulations.
(h) For the purposes of this clause (2) of Section 4.06(a)4.11(a) above, the following are will be deemed to be cash or cash equivalents: cash:
(1) the assumption by the transferee of Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the Company or Indebtedness of a Restricted Subsidiary (other than Guarantor Subordinated Obligations or Disqualified Stock of any Restricted Subsidiary that is a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with Section 4.11(b)(1)); and
(2) securities securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
cash within 180 days after receipt thereof. Notwithstanding the foregoing, the 75% limitation referred to in clause (b2) In the event of an Section 4.11(a) above shall be deemed satisfied with respect to any Asset Disposition that requires in which the purchase of Securities (and other Senior Subordinated Indebtedness cash or Cash Equivalents portion of the Company) pursuant to Section 4.06(a)(3)(C)consideration received therefrom, the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) determined in accordance with the procedures (including prorating in foregoing provision on an after-tax basis, is equal to or greater than what the event of overafter-subscription) set forth in Section 4.06(c). If tax proceeds would have been had such Asset Disposition complied with the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition)aforementioned 75% limitation.
(1i) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples The requirement of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a4.11(b) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security above shall be deemed to have been accepted for purchase at be satisfied if an agreement (including a lease, whether a capital lease or an operating lease) committing to make the time the Trustee, directly acquisitions or through an agent, mails or delivers payment therefor expenditures referred to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, therein is entered into by the Company shall comply with or its Restricted Subsidiary within the applicable securities laws specified time period and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance such Net Available Cash is subsequently applied in accordance with such securities laws or regulationsagreement within six months following such agreement.
Appears in 1 contract
Samples: Indenture (SM Energy Co)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1i) the Company or such Restricted Subsidiary receives consideration at the time (including by way of such Asset Disposition relief from, or by any other person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (including as such fair market value to be determined on the value date of all non-cash considerationcontractually agreeing to such Asset Disposition), as determined in good faith by the Board of DirectorsCompany, of the shares and assets subject to such Asset Disposition; ;
(2ii) at least 80(i) 75% for sales of assets that do not constitute Charged Property or (ii) 100% for sales of assets that constitute Charged Property, of the consideration thereof for such Asset Disposition received by the Company or such Restricted Subsidiary is in 57the form of cash or Cash Equivalents; and provided that, with respect to sales of assets that do not constitute Charged Property, the amount of
(aA) except the greater of the principal amount and the carrying value of any liabilities (as reflected on the Company’s most recent consolidated balance sheet or in the footnotes thereto or, if Incurred or increased subsequent to the extent date of such balance sheet, such liabilities that would have been reflected on the aggregate Company’s consolidated balance sheet or in the footnotes thereto if such incurrence or increase had taken place on or prior to the date of such balance sheet, as determined by the Company) of the Company, other than liabilities that are by their terms subordinated to the Facilities, that are (1) assumed by the transferee of any such assets (or a third party in connection with such transfer) pursuant to a written agreement which releases or indemnifies the Company from such liabilities or (2) otherwise cancelled or terminated in connection with the transaction; 211 Project Meria: Senior Facilties Agreement
(B) [Reserved]; and
(C) [Reserved], shall each be deemed to be Cash Equivalents for purposes of this provision and for no other purpose; and
(iii) an amount equal to one hundred (100) per cent. of the Net Available Cash from all such Asset Dispositions which Disposition is applied:
(A) if the assets sold pursuant to such Asset Disposition constitute Charged Property, the Company shall be required to apply (I) one hundred (100) per cent. of the Net Available Cash from such Asset Disposition to promptly repay the Facility B2 if, pro forma for such disposition, the Proportionate Net Leverage Ratio is greater than 3.00:1.00; (II) fifty (50) per cent. of the Net Available Cash from such Asset Disposition to repay the Facility B2 if, pro forma for such disposition, the Proportionate Net Leverage Ratio is equal to or less than 3.00:1.00 but greater than 2.50:1.00 and (III); zero (0) per cent. of the Net Available Cash from such Asset Disposition to repay the Facility B2 if, pro forma for such disposition, the Proportionate Net Leverage Ratio is equal to or less than 2.50:1.00. For the avoidance of doubt, any proceeds of such Asset Disposition not required to be applied pursuant to this sub-paragraph (iii)(A) shall not constitute Excess Proceeds and may be used for any purposes not prohibited under this Agreement; and
(B) if the assets sold pursuant to such Asset Disposition do not constitute Charged Property, an amount equal to one hundred (100) per cent. of the Net Available Cash from such Asset Disposition is applied to prepay, repay or purchase any Debt other than Debt owed to the Company or Subordinated Debt and/or to invest in accordance or commit to invest in Additional Assets, provided that:
(1) in connection with this Section 4.06(aany prepayment, repayment or purchase of Debt pursuant to sub-paragraph (B) exceeds $10.0 million. Pending above, the Company will retire such Debt and will cause the related commitment (if any) (other than in the case of any asset-based credit facility) to be reduced in an amount equal to the principal amount so prepaid, repaid or purchased provided further that if the Company elects that any repayment of any revolving credit facility shall constitute an application of Net Available Cash pursuant under this paragraph (B) (the amount so elected to this Section 4.06(abe applied being, the "RCF Election Amount"), such Net Available Cash repayment shall be invested in Temporary Cash Investments or applied to temporarily reduce accompanied by a permanent cancellation of commitments under such revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed facility in an amount at least equal to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and RCF Election Amount;
(2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by firstsub-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), paragraph (B) above, a description binding commitment or letter of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not intent entered into not later than the date upon which written notice of an Offer is delivered to the Trustee such 365th day shall be treated as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation a permitted application of the Net Available Cash from the date of such commitment or letter of intent so long as the Company enters into such commitment or letter of intent with the good faith expectation that such Net Available Cash will be applied to satisfy such commitment or letter of intent within the later of such 365th day and one hundred and eighty (180) days of such commitment or letter of intent (an "Acceptable Commitment") or, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Available Cash is applied in connection therewith, the Company enters into another Acceptable Commitment (a "Second Commitment") within one hundred and eighty (180) days of such cancellation or termination; provided further that if any Second Commitment is later cancelled or terminated for any reason before such Net Available Cash is applied, then such Net Available Cash shall constitute Excess Proceeds; and 212 Project Meria: Senior Facilties Agreement
(3) pending the final application of the amount of any such Net Available Cash in accordance with sub-paragraph (B) above or otherwise in accordance with this Section 4, the Company may temporarily reduce Debt or otherwise use such Net Available Cash in any manner not prohibited by this Agreement.
(b) The amount of Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in paragraph (a) above will be deemed to constitute "Excess Proceeds" under this Agreement; provided that, to the extent the Company has elected to prepay, repay or purchase any amount of Debt pursuant to which sub-paragraph (a)(iii)(B) above (other than Obligations under this Agreement) at a price of no less than one hundred (100) per cent. of the principal amount thereof, and has extended such Offer is being made and offer to the Lenders on at least a pro rata basis pursuant to Clause 8.5 (C) Application of prepayments), to the compliance extent the creditors in respect of such allocation with Debt (including the provisions Lenders) elect not to tender their Debt for such prepayment, repayment or purchase, the Company will be deemed to have applied an amount of Section 4.06(a) and Net Available Cash equal to such amount not tendered under this paragraph (b). On , and such dateamount shall not increase the amount of Excess Proceeds.
(c) In the case of sub-paragraph (a)(iii)(B) above, on the 366th day (or such longer period permitted by paragraph (a) above) after the later of an Asset Disposition or the receipt of such Net Available Cash, , the Company shall also irrevocably deposit with will within ten (10) Business Days make an offer (an "Asset Disposition Offer") to each Lender under the Trustee Facility, and if required or with a Paying Agent (orpermitted by the terms of any Debt, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date holders of such Debt, to prepay the outstanding Facility (and only to the extent the Facility is outstanding) held by any such Lender at par, and to purchase the maximum aggregate principal amount (or on accreted value, as applicable) of any such Debt that may be purchased out of the Purchase Date if funds are immediately available by open of business, Excess Proceeds at an offer price in cash in an amount equal to the Offer Amount to be held for payment offer price required by the terms thereof, in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described procedures set forth in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of paymentagreement(s) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that governing such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering HolderDebt.
(d) The Company shall complymay satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition in the case of sub-paragraph (a)(iii)(B) above, by making an Asset Disposition Offer with respect to such Net Available Cash prior to the extent expiration of the relevant three hundred and sixty-five (365) days (or such longer period provided above) with respect to all or part of the Net Available Cash (the "Advance Portion") in advance of being required to do so by this Agreement (an "Advance Offer").
(e) Other than in the case of sub-paragraph (a)(iii)(A) above, Clause 8.5 (Application of prepayments) shall apply to any prepayment of the Facility.
(f) If the aggregate principal amount (or accreted value, if applicable, with the requirements of Section 14(e) of the Exchange Act and any Facility or other securities laws or regulations in connection with the purchase of Securities Debt elected to be repaid pursuant to sub-paragraph (a)(iii)(A) above, as the case may be, surrendered by such holders thereof exceeds the amount offered in the Asset Disposition Offer (or in the case of an Advance Offer, the Advance Portion), the Company shall repay the Facility and such Debt, as the case may be, on a pro rata basis based on the aggregate principal amount (or accreted value, if applicable) of the Facility offered to be repaid or such Debt, as the case may be, tendered with adjustments as necessary so that no Facility to be repaid or Debt, as the case may be, will be repurchased in part in an unauthorized denomination. Upon completion of any such Asset Disposition Offer (or Advance Offer), the amount of Excess Proceeds that resulted in the requirement to make an Asset Disposition Offer shall be reset to zero (0) (regardless of whether there are any remaining Excess Proceeds upon such completion). Upon consummation or expiration of any Asset Disposition Offer, any remaining Net Available Cash shall not be deemed Excess Proceeds and the Company may use such Net Available Cash for any purpose permitted by this SectionAgreement. 213 Project Meria: Senior Facilties Agreement
(g) To the extent that the provisions aggregate amount (or accreted value, if applicable) of any securities laws or regulations conflict with provisions outstanding Facility prepaid and Debt, as the case may be, tendered pursuant to an Asset Disposition Offer is less than the amount offered in the Asset Disposition Offer (or, in the case of this Sectionan Advance Offer, the Advance Portion), the Company shall comply with may use any remaining Excess Proceeds (or in the applicable securities laws and regulations and shall case of an Advance Offer, the Advance Portion) for any purposes not be deemed to have breached its obligations otherwise prohibited under this Section by virtue of its compliance with such securities laws or regulationsAgreement.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless (1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value, as determined in good faith by the Board of Directors or, if such fair market value is less than $10.0 million, in good faith by an Officer (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; (2) at least 8075% of the aggregate consideration thereof received by the Company and its Restricted Subsidiaries from such Asset Disposition and all other Asset Dispositions since the Issue Date, is in the form of cash or Cash Equivalents; and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company or such Restricted Subsidiary is in 57
Subsidiary, as the case may be, (aA) except first, to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Senior Indebtedness or Guarantor Senior Indebtedness) to prepay, repay or purchase Senior Indebtedness or Guarantor Senior Indebtedness or Indebtedness (other than any Preferred Stock) of a Restricted Subsidiary and that is not a Subsidiary Guarantor (in each case other than Indebtedness owed to the release Company or an Affiliate of the Company); provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (A), the Company or such Restricted Subsidiary from all liability on will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in connection with such Asset Disposition an amount equal to the principal amount so prepaid, repaid or purchased; and (2B) securities received by second, to the Company or any Restricted Subsidiary from extent of the transferee that are promptly converted by balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company or such Restricted Subsidiary into cash.
(b) In elects, to invest in Additional Assets within 360 days from the event later of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (Asset Disposition or the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest receipt of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06Cash.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Fourth Supplemental Indenture (Hanover Compression Lp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company and QS Wholesale shall not, and the Company shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless: (1) the Company Company, QS Wholesale or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Company (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; (2) except in the case of Permitted Asset Swaps, at least 8075% of the consideration thereof from such Asset Disposition received by the Company, QS Wholesale or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company, QS Wholesale or such Restricted Subsidiary, as the case may be, at the option of the Company, QS Wholesale or such Restricted Subsidiary, as the case may be: (a) to prepay, repay or purchase Notes or other Indebtedness of the Company or QS Wholesale (other than Disqualified Stock or Subordinated Obligations) or Indebtedness of a Wholly Owned Subsidiary (other than any Disqualified Stock or Guarantor Subordinated Obligations of a Wholly Owned Subsidiary) (in each case, other than Indebtedness owed to the Company or an Affiliate of the Company) within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (a), the Company, QS Wholesale or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; (b) to acquire Additional Assets or make capital expenditures within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; or (c) to do any combination of the foregoing; provided that pending the final application of any such Net Available Cash in accordance with clause (a), (b) or (c) above, the Company, QS Wholesale and the Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture; provided further that the Company and QS Wholesale will be deemed to have complied with the provision described in clause (b) above if, and to the extent that, within 365 days after the Asset Disposition that generated the Net Available Cash, the Company, QS Wholesale or any Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement to acquire Additional Assets or make such capital expenditures, and that acquisition is thereafter completed or the capital expenditures thereafter made within 180 days after the end of such 365-day period.
(b) Any Net Available Cash from Asset Dispositions that are not applied or invested as provided in 57
paragraph (a) of this Section 3.7 shall be deemed to constitute “Excess Proceeds.” On the 366th day after an Asset Disposition (or as extended pursuant to the proviso in paragraph (a) of this Section 3.7), if the aggregate amount of Excess Proceeds exceeds $25,000,000 (or its equivalent in another currency), the Issuers (with respect to the Notes) and the Company, QS Wholesale or Boardriders, as the case may be (with respect to any Pari Passu Notes (as defined below), as required by such Pari Passu Notes) shall be required to make an offer (“Asset Disposition Offer”) to all Holders and to the extent required by the terms of other Pari Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the Company, QS Wholesale or Boardriders, as the case may be, to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”), to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to but not including the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Notes, as applicable, in each case, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof and other Pari Passu Notes surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Notes and the Pari Passu Notes will be purchased on a pro rata basis based on the aggregate principal amount of tendered Notes and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset to zero. The Issuers may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the expiration of the relevant 365 days (or such longer period provided above) or with respect to Excess Proceeds of $25,000,000 or less.
(c) The Asset Disposition Offer shall remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the aggregate Net Available Cash from all “Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 millionDisposition Offer Period”). Pending application No later than five Business Days after the termination of Net Available Cash the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuers shall purchase the principal amount of Notes and the Company, QS Wholesale or Boardriders, as the case may be, will purchase the principal amount of Pari Passu Notes required to be purchased pursuant to this Section 4.06(a)3.7 (the “Asset Disposition Offer Amount”) or, such Net Available Cash if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Asset Disposition Offer.
(d) If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be invested paid to the Person in Temporary Cash Investments whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Disposition Offer.
(e) On or applied before the Asset Disposition Purchase Date, the Company, QS Wholesale or Boardriders, as the case may be, shall, to temporarily reduce revolving credit indebtednessthe extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Notes so validly tendered and not properly withdrawn, in each case, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. The Company shall deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuers in accordance with the terms of this Section 3.7 and, in addition, the Company, QS Wholesale or Boardriders, as the case may be, shall deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. The Company, QS Wholesale, Boardriders or the Paying Agent, as the case may be, shall promptly (but in any case not later than five Business Days after termination of the Asset Disposition Offer Period) mail or deliver to each tendering Holder or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Notes or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company, QS Wholesale or Boardriders, as the case may be, for purchase, and the Issuers shall promptly issue a new Note, and the Trustee, upon delivery of an Officer’s Certificate from the Company, shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company, QS Wholesale or Boardriders, as the case may be, shall take any and all other actions, if any, required by the agreements governing the Pari Passu Notes. Any Note not so accepted shall be promptly mailed or delivered by the Issuers to the Holder thereof. The Issuers shall publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date.
(f) For the purposes of this Section 4.06(a)3.7, the following are shall be deemed to be cash or cash equivalentscash: (1x) the assumption by the transferee of Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the Company or QS Wholesale or Indebtedness of a Wholly Owned Subsidiary (other than Guarantor Subordinated Obligations or Disqualified Stock of any Restricted Wholly Owned Subsidiary that is a Subsidiary Guarantor) and the release of the Company Company, QS Wholesale or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2in which case the Issuers shall, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with clause (a) securities of this Section 3.7); (y) securities, notes or other obligations or assets received by the Company Company, QS Wholesale or any Restricted Subsidiary of the Company from the transferee that are promptly converted by the Company Company, QS Wholesale or such Restricted Subsidiary into cashcash or Cash Equivalents within 180 days after receipt; and (z) any Designated Non-cash Consideration received by the Company, QS Wholesale or any Restricted Subsidiary in such Asset Disposition having an aggregate fair market value (as determined in good faith by the Company), taken together with all other Designated Non-cash Consideration received pursuant to this clause (z) that is at that time outstanding, not to exceed the greater of (i) $25,000,000 and (ii) 2.0% of the Company’s Consolidated Tangible Assets at the time of receipt of such Designated Non-cash Consideration, with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(dg) The Company Issuers shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this SectionSection 3.7. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 3.7, the Company Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its their obligations under this Section Indenture by virtue of any conflict.
(h) For the purposes of this Section 3.7, Holders electing to have a Note purchased shall be required to surrender the Note, with an appropriate form duly completed, to the Issuers at the address specified in the notice at least three Business Days prior to the purchase date. Each Holder shall be entitled to withdraw its compliance with election if the Issuers receive, not later than one Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter from such securities laws Holder setting forth the name of such Holder, the principal amount of the Note or regulationsNotes which were delivered for purchase by such Holder and a statement that such Holder is withdrawing his election to have such Note or Notes purchased.
Appears in 1 contract
Samples: Indenture (Quiksilver Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall Borrower will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1i) the Company Borrower or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; , as such fair market value (2on the date a legally binding commitment for such Asset Disposition was entered into) may be determined (and shall be determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $25,000,000the greater of $67,500,000 and 25.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated financial statements of the Borrower are available) in good faith by the Borrower, whose determination shall be conclusive (including as to the value of all noncash consideration);
(ii) in the case of any Asset Disposition (or series of related Asset Dispositions) having a fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) of $25,000,000 or mxxxxx excess of the greater of $67,500,000 and 25.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated financial statements of the Borrower are available, at least 8075.00% of the consideration thereof therefor (excluding, in the case of an Asset Disposition (or series of related Asset Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, that are not Indebtedness) received by the Company Borrower or such Restricted Subsidiary is in 57the form of cash; and
(aiii) except to the extent that required by Subsection 8.4(b), an amount equal to 100.00% of the aggregate Net Available Cash from all such Asset Dispositions which Disposition is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For by the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: Borrower (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and Subsidiary, as the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2case may be) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cashas provided therein.
(b) In the event of that on or after the Closing Date the Borrower or any Restricted Subsidiary shall make an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at or a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, Recovery Event in respect of such other Senior Subordinated IndebtednessCollateral shall occur, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reportsSubsection 8.4(a), (B) a description of material developments in the Company's business subsequent an amount equal to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation 100.00% of the Net Available Cash from the such Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company Disposition or Recovery Event shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted applied by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment Borrower (or cause any Restricted Subsidiary, as the delivery of paymentcase may be) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.as follows:
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as such Fair Market Value to be determined on the value date of all non-cash consideration), as determined in good faith by the Board of Directors, contractually agreeing to such Asset Disposition) of the shares and or other assets subject to such Asset Disposition; and
(2) at least 8075% of the aggregate consideration thereof received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, from such Asset Disposition and all other Asset Dispositions since the 2019 Notes Issue Date, on a cumulative basis, is in 57the form of cash or Cash Equivalents or Additional Assets, or any combination thereof.
(ab) The Net Available Cash from such Asset Disposition may be applied, within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, by the Company or such Restricted Subsidiary, as the case may be:
(1) to prepay, repay, redeem or purchase Pari Passu Indebtedness of the Company (including the Notes) or a Subsidiary Guarantor or any Indebtedness (other than Disqualified Stock) of a Restricted Subsidiary that is not a Subsidiary Guarantor (in each case, excluding Indebtedness owed to the Company or an Affiliate of the Company); provided, however, that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this Section 4.11(b)(1), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; or
(2) to make capital expenditures in the Oil and Gas Business or to invest in Additional Assets; provided, that pending the final application of any such Net Available Cash in accordance with clause (1) or clause (2) of this Section 4.11(b), the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(c) Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in Section 4.11(b) will be deemed to constitute “Excess Proceeds.” Not later than the 366th day from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Pari Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount (or, in the event such Pari Passu Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof) of the Notes and Pari Passu Notes plus accrued and unpaid interest, if any (or in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Indebtedness), to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Notes, as applicable, in each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000. If the aggregate principal amount of Notes surrendered by Holders thereof and other Pari Passu Notes surrendered by Holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Notes. To the extent that the aggregate principal amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to the Articles Four and Five of this Indenture. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(d) The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the aggregate Net Available Cash from all “Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 millionDisposition Offer Period”). Pending application No later than five Business Days after the termination of Net Available Cash the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Notes and Pari Passu Notes required to be purchased pursuant to this Section 4.06(a)4.11 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered and not properly withdrawn, all Notes and Pari Passu Notes validly tendered and not properly withdrawn in response to the Asset Disposition Offer.
(e) If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such Net Available Cash shall record date, and no further interest will be invested payable to Holders who tender Notes pursuant to the Asset Disposition Offer.
(f) On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Notes so validly tendered and not properly withdrawn, in Temporary Cash Investments each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000. The Company will deliver to the Trustee an Officers’ Certificate stating that such Notes or applied portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.11 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. The Company or the paying agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Disposition Offer Period) mail or deliver to temporarily reduce revolving credit indebtednesseach tendering Holder of Notes or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Notes or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided, that each such new Note will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess of $2,000. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Note not so accepted will be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date.
(g) The Company will comply, to the extent applicable, with the requirements of Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to an Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.11, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of its compliance with such securities laws or regulations.
(h) For the purposes of this clause (2) of Section 4.06(a)4.11(a) above, the following are will be deemed to be cash or cash equivalents: cash:
(1) the assumption by the transferee of Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the Company or Indebtedness of a Restricted Subsidiary (other than Guarantor Subordinated Obligations or Disqualified Stock of any Restricted Subsidiary that is a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with Section 4.11(b)(1)); and
(2) securities securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
cash within 180 days after receipt thereof. Notwithstanding the foregoing, the 75% limitation referred to in clause (b2) In the event of an Section 4.11(a) above shall be deemed satisfied with respect to any Asset Disposition that requires in which the purchase of Securities (and other Senior Subordinated Indebtedness cash or Cash Equivalents portion of the Company) pursuant to Section 4.06(a)(3)(C)consideration received therefrom, the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) determined in accordance with the procedures (including prorating in foregoing provision on an after-tax basis, is equal to or greater than what the event of overafter-subscription) set forth in Section 4.06(c). If tax proceeds would have been had such Asset Disposition complied with the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition)aforementioned 75% limitation.
(1i) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples The requirement of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a4.11(b) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security above shall be deemed to have been accepted for purchase at be satisfied if an agreement (including a lease, whether a capital lease or an operating lease) committing to make the time the Trustee, directly acquisitions or through an agent, mails or delivers payment therefor expenditures referred to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, therein is entered into by the Company shall comply with or its Restricted Subsidiary within the applicable securities laws specified time period and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance such Net Available Cash is subsequently applied in accordance with such securities laws or regulationsagreement within six months following such agreement.
Appears in 1 contract
Samples: Indenture (SM Energy Co)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as such Fair Market Value to be determined on the value date of all non-cash consideration), as determined in good faith by the Board of Directors, contractually agreeing to such Asset Disposition) of the shares and or other assets subject to such Asset Disposition; and
(2) at least 8075% of the aggregate consideration thereof received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, from such Asset Disposition and all other Asset Dispositions since the Issue Date, on a cumulative basis, is in 57the form of cash or Cash Equivalents or Additional Assets, or any combination thereof.
(ab) except to the extent that the aggregate The Net Available Cash from all such Asset Dispositions which Disposition may be applied, within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, by the Company or such Restricted Subsidiary, as the case may be:
(1) to prepay, repay, redeem or purchase Pari Passu Indebtedness of the Company (including the Notes) or a Subsidiary Guarantor or any Indebtedness (other than Disqualified Stock) of a Restricted Subsidiary that is not applied a Subsidiary Guarantor (in accordance each case, excluding Indebtedness owed to the Company or an Affiliate of the Company); provided, however, that, in connection with this Section 4.06(a) exceeds $10.0 million. Pending application any prepayment, repayment, redemption or purchase of Net Available Cash Indebtedness pursuant to this Section 4.06(a4.11(b)(1), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in connection with such Asset Disposition and an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; or
(2) securities received to make capital expenditures in the Oil and Gas Business or to invest in Additional Assets; provided, that pending the final application of any such Net Available Cash in accordance with clause (1) or clause (2) of this Section 4.11(b), the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. The requirement of clause (2) of this Section 4.11(b) shall be deemed to be satisfied if an agreement committing to make the acquisition or expenditure referred to therein is entered into by the Company or any a Restricted Subsidiary from within the transferee that are promptly converted by the Company or specified time period and such Restricted Subsidiary into cashNet Available Cash is subsequently applied in accordance with such agreement within six months following such agreement.
(bc) In Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in Section 4.11(b) will be deemed to constitute “Excess Proceeds.” Not later than the event 366th day from the later of an the date of such Asset Disposition that requires or the purchase receipt of Securities (and other Senior Subordinated Indebtedness such Net Available Cash, if the aggregate amount of the Company) pursuant to Section 4.06(a)(3)(C)Excess Proceeds exceeds $20.0 million, the Company shall purchase Securities tendered pursuant will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Pari Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the Company for to make an offer to purchase such Pari Passu Indebtedness with the Securities proceeds from any Asset Disposition (“Pari Passu Notes”) to purchase the maximum principal amount of Notes and any such other Senior Subordinated Indebtedness Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Company) (the "Offer") Excess Proceeds, at a purchase an offer price of in cash in an amount equal to 100% of their the principal amount (or, in the event such other Senior Subordinated Pari Passu Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, ) of the Notes and Pari Passu Notes plus accrued but and unpaid interest interest, if any (or, or in respect of such other Senior Subordinated Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness Indebtedness), to the date of purchase (subject to the Company) right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c)this Indenture or the agreements governing the Pari Passu Notes, as applicable, in each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000. If the aggregate purchase price principal amount of Securities (Notes surrendered by Holders thereof and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer Pari Passu Notes surrendered by Holders or lenders, collectively, exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Trustee shall select the Securities and other Senior Subordinated Indebtedness Notes to be purchased on a pro rata basis but in round denominations, which in on the case basis of the Securities will be denominations of $1,000 aggregate principal amount or multiples thereofof tendered Notes and Pari Passu Notes. To the extent that the aggregate principal amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to the Articles IV and V of this Indenture. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(d) The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company shall not be will purchase the principal amount of Notes and Pari Passu Notes required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) be purchased pursuant to this Section 4.06 4.11 (the “Asset Disposition Offer Amount”) or, if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an the Asset Disposition Offer is required with respect Amount has been so validly tendered and not properly withdrawn, all Notes and Pari Passu Notes validly tendered and not properly withdrawn in response to the Net Available Cash from any subsequent Asset Disposition)Disposition Offer.
(1e) PromptlyIf the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and in any event within 10 days after no further interest will be payable to Holders who tender Notes pursuant to the Company becomes obligated to make an Asset Disposition Offer.
(f) On or before the Asset Disposition Purchase Date, the Company shall deliver will, to the Trustee extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and sendPari Passu Notes or portions of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, by first-class mail to or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Notes so validly tendered and not properly withdrawn, in each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either case in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of principal amount, at the applicable purchase price$2,000. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' ’ Certificate stating that such Securities are to be Notes or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this SectionSection 4.11 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. A Security shall be deemed The Company or the paying agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Disposition Offer Period) mail or deliver to have been each tendering Holder of Notes or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Notes or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase at purchase, and the time Company will promptly issue a new Note, and the Trustee, directly upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or through deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided, that each such new Note will be in a minimum principal amount of $2,000 or an agentintegral multiple of $1,000 in excess of $2,000. In addition, mails the Company will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Note not so accepted will be promptly mailed or delivers payment therefor delivered by the Company to the surrendering HolderHolder thereof. The Company will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date.
(dg) The Company shall will comply, to the extent applicable, with the requirements of Section 14(e) Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this Sectionan Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 4.11, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulations.
(h) For the purposes of clause (2) of Section 4.11(a) above, the following will be deemed to be cash:
(1) the assumption by the transferee of Indebtedness or other obligations appearing on the consolidated balance sheet of the Company (other than Subordinated Obligations or Disqualified Stock) of the Company or Indebtedness or other obligations of a Restricted Subsidiary appearing on the consolidated balance sheet of the Company (other than Guarantor Subordinated Obligations or Disqualified Stock of any Restricted Subsidiary that is a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition (in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with Section 4.11(b)(1)); and
(2) securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days after receipt thereof.
Appears in 1 contract
Samples: Indenture (Ultra Petroleum Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value value, as determined in good faith by the Board of Directors (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; ;
(2) at least 8075% of the consideration thereof from such Asset Disposition received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in 57the form of cash or Cash Equivalents; and
(3) subject to the requirement to make an Asset Disposition Offer as described below, an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company or such Restricted Subsidiary, as the case may be, to any one of the following:
(a) to prepay, repay or purchase Indebtedness (other than Disqualified Stock or Subordinated Obligations) of the Company or Indebtedness (other than any Preferred Stock or Guarantor Subordinated Obligation) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased;
(b) to acquire or invest in Additional Assets or make installment or progress payments in respect of such Additional Assets within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and
(c) to make capital expenditures, provided that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. A binding contract to apply Net Available Cash in accordance with clauses (b) and (c) above will toll the 365-day period in respect of such Net Available Cash for a period not to exceed 180 days from the expiration of the 365-day period, provided that such binding contract shall be treated as a permitted application of Net Available Cash from the date of such binding contract until and only until the earlier of (i) the date on which such acquisition or expenditure is consummated and (ii) otherwise, the 180th day following the expiration of the 365-day period (clause (i) or clause (ii) as applicable, the “Reinvestment Termination Date”). If such acquisition or expenditure is not consummated on or before the Reinvestment Termination Date and the Company (or the applicable Restricted Subsidiary, as the case may be) shall not have applied such Net Available Cash pursuant to clauses (1) through (3) above on or before the Reinvestment Termination Date, such binding contract shall be deemed not to have been a permitted application of the Net Available Cash.
(b) Any Net Available Cash from Asset Dispositions that are not applied or invested as provided in the preceding paragraphs of this Section 3.7 will be deemed to constitute “Excess Proceeds.” On the 366th day after an Asset Disposition (subject to tolling as described in the preceding paragraph), if the aggregate amount of Excess Proceeds exceeds $20.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Securities and to the extent required by the terms of other Pari Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”), to purchase the maximum principal amount of Securities and any such Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Securities and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Notes, as applicable, in each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess thereof. To the extent that the aggregate amount of Securities and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. If the aggregate principal amount of Securities surrendered by Holders thereof and other Pari Passu Notes surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select the Securities and Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Securities and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(1) The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the aggregate Net Available Cash from all “Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 millionDisposition Offer Period”). Pending application No later than five Business Days after the termination of Net Available Cash the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Securities and Pari Passu Notes required to be purchased pursuant to this Section 4.06(a)3.7 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Securities and Pari Passu Notes validly tendered in response to the Asset Disposition Offer.
(2) If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the Person in whose name a Security is registered at the close of business on such Net Available Cash shall record date, and no additional interest will be invested payable to Holders of the Securities who tender Securities pursuant to the Asset Disposition Offer.
(3) On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Securities and Pari Passu Notes or portions of Securities and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Securities and Pari Passu Notes so validly tendered and not properly withdrawn, in Temporary Cash Investments each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess thereof. The Company will deliver to the Trustee an Officers’ Certificate stating that such Securities or applied portions thereof were accepted for payment by the Company in accordance with the terms of this Section 3.7 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after termination of the Asset Disposition Offer Period) mail or deliver to temporarily reduce revolving credit indebtednesseach tendering Holder of Securities or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Securities or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Security, and the Trustee, upon delivery of an Officers’ Certificate from the Company will authenticate and mail or deliver such new Security to such Holder, in a principal amount equal to any unpurchased portion of the Security surrendered; provided that each such new Security will be in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess thereof. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Security not so accepted will be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date. For the purposes of this Section 4.06(a)3.7, the following are will be deemed to be cash or cash equivalents: cash:
(1) the assumption assumption, repayment or retirement by the transferee of Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the Company or Indebtedness (other than Guarantor Subordinated Obligations or Preferred Stock) of any Restricted Subsidiary of the Company and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with clause (a) above);
(2) securities securities, notes or other obligations received by the Company or any Restricted Subsidiary of the Company from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.cash or Cash Equivalents within 180 days from the receipt of such obligations; and
(b3) In equity securities that are publicly traded on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market. The Company will not, and will not permit any Restricted Subsidiary to, engage in any Asset Swaps, unless:
(1) at the time of entering into such Asset Swap and immediately after giving effect to such Asset Swap, no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(2) in the event such Asset Swap involves the transfer by the Company or any Restricted Subsidiary of assets having an aggregate fair market value, as determined by the Board of Directors of the Company in good faith, in excess of $5.0 million, the terms of such Asset Disposition that requires Swap have been approved by a majority of the purchase members of Securities (and other Senior Subordinated Indebtedness the Board of Directors of the Company; and
(3) pursuant to Section 4.06(a)(3)(C)in the event such Asset Swap involves the transfer by the Company or any Restricted Subsidiary of assets having an aggregate fair market value, as determined by the Board of Directors of the Company in good faith, in excess of $30.0 million, the Company shall purchase Securities tendered pursuant to has received a written opinion from an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness independent investment banking firm of the Company) (the "Offer") at a purchase price of 100% of their principal amount nationally recognized standing (or, in the event such other Senior Subordinated Indebtedness case of the Company was issued with significant original issue discountVessels, 100% of the accreted value thereofthree Independent Appraisers), without premium, plus accrued but unpaid interest (or, in respect of that such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor Asset Swap is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess fair to the Company immediately after or such Restricted Subsidiary, as the expiration case may be, from a financial point of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holderview.
(d) The Company shall will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities pursuant to this SectionSection 3.7. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 3.7, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulationsany conflict.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, ) of the shares and other assets subject to such Asset Disposition (in each case, such Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition; );
(2) at least 8075% of the consideration thereof received by the Company or such Restricted Subsidiary is in 57the form of cash or Temporary Cash Investments;
(a3) except if and to the extent that the aggregate Company so elects, the Net Available Cash from all such Asset Dispositions which is not Disposition may be applied in accordance with this Section 4.06(aby the Company (or such Restricted Subsidiary, as the case may be) exceeds $10.0 million. Pending application within 365 days of the receipt of such Net Available Cash Cash:
(A) to prepay, repay or purchase Senior Indebtedness; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.06(aclause (A), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in connection with such Asset Disposition and (2) securities received by an amount equal to the Company principal amount so prepaid, repaid or any Restricted Subsidiary from the transferee purchased; provided further that are promptly converted by if the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other shall so reduce any unsecured Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C)Indebtedness, the Company shall purchase will equally and ratably reduce Indebtedness under the Securities tendered pursuant to by making an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") to all Holders to purchase at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, equal to 100% of the accreted value principal amount thereof), without premium, plus accrued but and unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser priceinterest, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness pro rata principal amount of the Company) Securities, such offer to be conducted in accordance with the procedures set forth below for an Asset Disposition Offer but without any further limitation in amount; or
(including prorating B) to reduce Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (B), such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or otherwise retired, in each case of (A) and (B) other than Indebtedness owed to the Company or an Affiliate of the Company; or
(C) to acquire Additional Assets within 365 days of the receipt of such Net Available Cash; provided that, in the event case of over-subscriptionthis clause (C), a binding commitment shall be treated as a permitted application of the Net Available Cash from the date of such commitment so long as the Company or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Available Cash will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and if any Acceptable Commitment is later cancelled or terminated for any reason before such Net Available Cash is applied, then such Net Available Cash shall constitute Excess Proceeds; or
(D) a combination of the foregoing; and
(4) Any Net Available Cash from the Asset Dispositions covered by this Section 4.06(a) that is not invested or applied, or committed to be invested or applied, as provided in Section 4.06(a)(3) will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $25,000,000, within 30 days thereof, the Company shall make an offer to all Holders (each, an “Asset Disposition Offer”), and, if required by the terms of any other Senior Indebtedness, to the holders of such other Senior Indebtedness, to purchase the maximum aggregate principal amount of the Securities and any such other Senior Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount of the Securities and such other Senior Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, subject to, without duplication, the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date, in accordance with the procedures set forth in Section 4.06(c)this Indenture or the agreements governing such other Senior Indebtedness, as applicable, and, with respect to the Securities, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. The Company will commence an Asset Disposition Offer with respect to Excess Proceeds within 30 days after the date that Excess Proceeds exceed $25,000,000 by providing the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. The Company may satisfy the foregoing obligation with respect to such Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the expiration of the Application Period. To the extent that the aggregate amount of Securities and such other Senior Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate purchase price principal amount of Securities (and any or other Senior Subordinated Indebtedness tendered in any Asset Disposition Offer by Holders and holders or lenders of the Company) tendered pursuant to the Offer Senior Indebtedness exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company shall select the Securities and such other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in based on the case of the Securities will be denominations of $1,000 principal amount amounts tendered or multiples thereof. The Company shall not be required to make an Offer to purchase be prepaid or redeemed; provided that no Securities (and or other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes selected and purchased in an unauthorized denomination. Upon completion of determining whether such an Offer is required with respect to any Asset Disposition Offer, the Net Available Cash from any subsequent Asset Disposition)amount of Excess Proceeds shall be reset at zero.
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities pursuant to this SectionSection 4.06. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 4.06, the Company shall comply with the applicable securities laws and regulations and shall not be deemed not to have breached its obligations under this Section 4.06 by virtue of its compliance with such securities laws or regulations.
(c) In the event of the transfer of substantially all (but not all) of the assets of the Company and the Restricted Subsidiaries as an entirety to a Person in accordance with this Indenture, the successor shall be deemed to have sold for cash at Fair Market Value the assets of the Company and the Restricted Subsidiaries not so transferred for purposes of this Section 4.06, and shall comply with the provisions of this Section 4.06 with respect to such deemed sale as if it were an Asset Disposition (with such Fair Market Value being deemed to be Net Available Cash for such purpose).
(d) Pending application of Net Available Cash pursuant to this Section 4.06, such Net Available Cash may be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of Section 4.06(a)(2), and for no other purpose, the following are deemed to be Temporary Cash Investments: (1) the assumption or discharge of Senior Indebtedness of the Company or any Subsidiary Guarantor (other than obligations in respect of Disqualified Stock of the Company or Preferred Stock of a Subsidiary Guarantor) or any Indebtedness or Preferred Stock of a Restricted Subsidiary that is not a Subsidiary Guarantor and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition; (2) any securities or other obligations received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days after such Asset Disposition, to the extent of the cash received in that conversion; (3) the Fair Market Value of (i) any assets (other than securities) received by the Company or any Restricted Subsidiary to be used by it in the Related Business, (ii) Capital Stock in a Person that is a Restricted Subsidiary or in a Person engaged in the Related Business that shall become a Restricted Subsidiary immediately upon the acquisition of such Person by the Company or any Restricted Subsidiary or (iii) a combination of (i) and (ii); and (4) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value, taken together with the Fair Market Value of all other Designated Non-cash Consideration received pursuant to this clause (4) that is at that time outstanding, not greater than 5.0% of Consolidated Net Tangible Assets at the time of the receipt of such Designated Non-cash Consideration, with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(e) All references herein to “Net Available Cash” and “Excess Proceeds” shall be deemed to mean cash in an amount equal to the amount of Net Available Cash or Excess Proceeds, as applicable, but not necessarily the actual cash received from the relevant Asset Disposition. The Company and its Subsidiaries shall have no obligation to segregate, trace or otherwise identify Net Available Cash or Excess Proceeds, it being agreed that cash is fungible and that the Company’s obligations under this Section 4.06 may be satisfied by the application of funds from other sources.
Appears in 1 contract
Samples: Indenture (Us Concrete Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly cause, make or indirectly, consummate suffer to exist any Asset Disposition unless unless:
(1i) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors of the Company (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; ;
(2ii) at least 8075% of the consideration thereof from such Asset Disposition received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in 57the form of cash or Cash Equivalents; and
(aiii) except an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company or such Restricted Subsidiary, at its option:
(A) to prepay, repay or purchase Indebtedness of the Company (other than any Disqualified Stock or Subordinated Obligations) or Indebtedness of a Restricted Subsidiary (other than any Disqualified Stock or Guarantor Subordinated Obligations of a Subsidiary Guarantor) (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 3.5(a)(iii)(A), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; or
(B) to invest in Additional Assets within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided that a binding commitment shall be treated as a permitted application of the Net Available Cash from the date of such commitment and, in the event such binding commitment is later canceled or terminated for any reason before such Net Available Cash is so applied, the Company or such Restricted Subsidiary enters into another binding commitment within nine months of such cancellation or termination of the prior binding commitment, provided, further, that any such binding commitment to invest shall be subject to customary conditions (other than financing). Pending the final application of any such Net Available Cash in accordance with Section 3.5(a)(iii)(A) or Section 3.5(a)(iii)(B) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in Section 3.5(a)(iii) will be deemed to constitute “Excess Proceeds.” On the 366th day after an Asset Disposition, if the aggregate amount of Excess Proceeds exceeds $40.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all holders of Securities and to the extent required by the terms of other Pari Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Disposition to purchase the maximum principal amount of Securities and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Securities and Pari Passu Indebtedness plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, in each case in a principal amount of $2,000 and integral multiples of $1,000 in excess thereof. To the extent that the aggregate Net Available Cash from all amount of Securities and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Dispositions which Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not applied in accordance with prohibited by this Section 4.06(a) Indenture. If the aggregate principal amount of Securities surrendered by holders thereof and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds $10.0 millionthe amount of Excess Proceeds, the Trustee shall select the Securities and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Securities and Pari Passu Indebtedness. Pending application Upon completion of Net Available Cash such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. No later than five Business Days after the termination of the Asset Disposition Offer (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Securities and Pari Passu Indebtedness required to be purchased pursuant to this Section 4.06(a)3.5 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Securities and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the Person in whose name a Security is registered at the close of business on such Net Available Cash shall record date, and no Additional Interest will be invested payable to holders who tender Securities pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Securities and Pari Passu Indebtedness or portions of Securities and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Securities and Pari Passu Indebtedness so validly tendered and not properly withdrawn, in Temporary Cash Investments each case in a principal amount of $2,000 and integral multiples of $1,000 in excess thereof. The Company will deliver to the Trustee an Officers’ Certificate stating that such Securities or applied portions thereof were accepted for payment by the Company in accordance with the terms of this Section 3.5 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Indebtedness. The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after termination of the Asset Disposition Offer) mail or deliver to temporarily reduce revolving credit indebtednesseach tendering holder of Securities or holder or lender of Pari Passu Indebtedness, as the case may be, an amount equal to the purchase price of the Securities or Pari Passu Indebtedness so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Security, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Security to such holder, in a principal amount equal to any unpurchased portion of the Security surrendered; provided that each such new Security will be in a principal amount of $2,000 and integral multiples of $1,000 in excess thereof. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Indebtedness. Any Security not so accepted will be promptly mailed or delivered by the Company to the holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date. For the purposes of this Section 4.06(a)3.5, the following are will be deemed to be cash or cash equivalents: cash:
(1i) the assumption by the transferee of Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the Company or any Indebtedness of a Restricted Subsidiary (other than Guarantor Subordinated Obligations or Disqualified Stock of any Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with Section 3.5(a)(iii)(A) securities above);
(ii) securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event cash within 10 180 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business close of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.Disposition; and
Appears in 1 contract
Samples: Indenture (Deluxe Corp)
Limitation on Sales of Assets and Subsidiary Stock.
(a) The Company shall Issuer will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless unless:
(1i) the Company consideration the Issuer or such Restricted Subsidiary receives for such Asset Disposition is not less than the fair market value of the assets sold (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined by the Issuer’s Board of Directors; and
(ii) other than with respect to a Permitted Asset Swap, at least 75% of the consideration the Issuer or such Restricted Subsidiary receives in respect of such Asset Disposition consists of:
(A) cash (including any Net Available Cash received from the conversion within 180 days of such Asset Disposition of securities, notes or other obligations received in consideration of such Asset Disposition);
(B) Cash Equivalents, Temporary Cash Investments or Investment Grade Securities;
(C) the assumption by the purchaser of (x) any liabilities recorded on the Issuer’s or such Restricted Subsidiary’s balance sheet or the notes thereto (or, if incurred since the date of the latest balance sheet, that would be recorded on the next balance sheet or the notes thereto) (other than Subordinated Debt), as a result of which neither the Issuer nor any of the Restricted Subsidiaries remains obligated in respect of such liabilities or (y) Indebtedness of a Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, if the Issuer and each other Restricted Subsidiary is released from any guarantee of such Indebtedness as a result of such Asset Disposition;
(D) Replacement Assets;
(E) any Capital Stock or assets of the kind referred to in Section 4.05(b)(iv), Section 4.05(b)(v) or Section 4.05(b)(vi);
(F) consideration consisting of Indebtedness of the Issuer or any Guarantor received from Persons who are not the Issuer or any Restricted Subsidiary, but only to the extent that such Indebtedness is not Subordinated Indebtedness of the Issuer or such Guarantor;
(G) any Designated Non-Cash Consideration received by the Issuer or any Restricted Subsidiary, having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section 4.05 that is at any one time outstanding, not to exceed the greater of $45.0 million and 11.5% of Consolidated EBITDA at the time of the receipt of such Asset Disposition at least equal to Designated Non-Cash Consideration (with the fair market value of each issue of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value); or
(including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; (2H) at least 80% a combination of the consideration thereof received by the Company or such Restricted Subsidiary is specified in 57Section 4.05(a)(ii)(A) through (G).
(ab) except to If the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company Issuer or any Restricted Subsidiary and consummates an Asset Disposition, the release Net Available Cash of the Company Asset Disposition, within 365 days (or such Restricted Subsidiary from all liability on such Indebtedness 545 days in connection with the circumstances described in Section 4.05(b)(viii)) of the later of (x) the date of the consummation of such Asset Disposition and (2y) securities received the receipt of such Net Available Cash, may be used by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company Issuer or such Restricted Subsidiary into cash.to:
(bi) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statementsprepay, repay, purchase or redeem any Indebtedness incurred under Section 4.01(b)(i) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and or any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described Refinancing Indebtedness in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.respect thereof;
Appears in 1 contract
Samples: Indenture
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1i) the Company or such the Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such the Asset Disposition at least equal to the fair market value of the assets subject to the Asset Disposition (determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by senior management of the Company or, if the consideration with respect to such Asset Disposition exceeds $10,000,000, the Board of Directors of the Company (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; and
(2ii) at least 8075% of the consideration thereof from the Asset Disposition received by the Company or the Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents.
(b) The Company or such Restricted Subsidiary, as the case may be, may elect to apply all or any portion of the Net Available Cash from such Asset Disposition either:
(i) to prepay, repay, purchase, repurchase, redeem, defease or otherwise acquire or retire Second Lien Term Loans, the Notes, loans under the First Lien Credit Agreements, Existing 2015 Senior Notes, Existing 2016 Senior Notes or Existing Subordinate Notes within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment, purchase, repurchase, redemption, defeasance, or acquisition of Indebtedness pursuant to this clause (i), the Company or such Restricted Subsidiary is will retire such Indebtedness and, in 57the case of revolving Indebtedness, will cause the related commitment (if any) to be permanently reduced by an amount equal to the principal amount so retired; or
(aii) except to invest in Additional Assets within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided that, pending the final application of any such Net Available Cash in accordance with subclauses (i) or (ii) of this clause (b), the Company and its Restricted Subsidiaries may temporarily reduce Senior Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(c) Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in Section 5.06(b) will be deemed to constitute “Excess Proceeds.” On the 366th day after an Asset Disposition, if the aggregate amount of Excess Proceeds exceeds $20,000,000, the Company must make an offer (an “Asset Disposition Offer”) to all Holders and to the extent required by the terms of the applicable governing documents of any Indebtedness secured by a Prior Lien or by any other Pari Passu Debt (collectively, the “Subject Debt”), to all holders of such Subject Debt, to prepay or purchase the maximum principal amount of Notes and such Subject Debt to which the Asset Disposition Offer applies that may be prepaid or purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and such Subject Debt plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in this Indenture, the Second Lien Term Loan Agreement or the agreements governing the other Subject Debt, as applicable, in the case of the Notes, in amounts equal to $2,000 or an integral multiple of $1,000 in excess thereof; provided that any unpurchased portion of a note must be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof; provided, further, that any such Asset Disposition Offer may be deferred if (but only for so long as) the Company reasonably anticipates that no redemption of Notes and Subject Debt pursuant thereto would be permitted on the Asset Disposition Purchase Date (as defined below) under the U.S. First Lien Credit Agreement (and the Company agrees that during the period of any such deferral, the aggregate amount of cash and Cash Equivalents held by the Company and its Subsidiaries shall not exceed $25,000,000). To the extent that the aggregate Net Available Cash from all Asset Dispositions which is amount of Notes and Subject Debt so validly offered for prepayment or tendered and not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in this Section 4.06(a)Indenture. If the aggregate principal amount of Notes surrendered by Holders and other Subject Debt offered for prepayment or surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, Holders of tendered Notes will receive their ratable portion of such Net Available Cash proceeds and the Trustee shall select the Notes to be prepaid or purchased pro rata on the basis of the aggregate principal amount of tendered Notes, subject to such adjustments as shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtednesspermitted by this Indenture. Upon completion of the Asset Disposition Offer, the amount of Excess Proceeds will be reset at zero. For the purposes avoidance of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (ordoubt, in the event such other Senior Subordinated any Subject Debt requires a prepayment of Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant rather than an offer to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount prepay or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated repurchase Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant foregoing references to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased offers shall be required deemed to surrender the Security, with an appro- priate form duly completed, refer to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and prepayments made in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that such Subject Debt; if the provisions of any securities laws other Subject Debt provide for a longer period for an offer to remain open or regulations conflict with provisions for payment to be made than is provided hereunder (the “Later Debt”), then (1) the portion of this Section, the Company Excess Proceeds that would be paid to holders of the Later Debt if all such holders accepted the offer shall comply with be set aside (the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.“Later Debt Proceeds”),
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1i) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; ;
(2ii) at least 8075% of the consideration thereof from such Asset Disposition received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in 57the form of cash or Cash Equivalents; and
(aiii) except an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company or such Restricted Subsidiary, at its option:
(A) to prepay, repay or purchase Indebtedness of the Company (other than any Disqualified Stock or Subordinated Obligations) or Indebtedness of a Restricted Subsidiary (other than any Disqualified Stock or Guarantor Subordinated Obligations of a Subsidiary Guarantor) (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 3.5(a)(iii)(A), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; or
(B) to invest in Additional Assets within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided that a binding commitment shall be treated as a permitted application of the Net Available Cash from the date of such commitment and, in the event such binding commitment is later canceled or terminated for any reason before such Net Available Cash is so applied, the Company or such Restricted Subsidiary enters into another binding commitment within nine months of such cancellation or termination of the prior binding commitment, provided, further, that any such binding commitment to invest shall be subject to customary conditions (other than financing). Pending the final application of any such Net Available Cash in accordance with Section 3.5(a)(iii)(A) or Section 3.5(a)(iii)(B) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. Any Net Available Cash from Asset Dispositions that are not applied or invested as provided in Section 3.5(a)(iii) will be deemed to constitute “Excess Proceeds.” On the 366th day after an Asset Disposition, if the aggregate amount of Excess Proceeds exceeds $25 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all holders of Securities and to the extent required by the terms of other Pari Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”), to purchase the maximum principal amount of Securities and any such Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Securities and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Notes, as applicable, in each case in a principal amount of $2,000 and integral multiples of $1,000 in excess thereof. To the extent that the aggregate Net Available Cash from all amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Dispositions which Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not applied in accordance with prohibited by this Section 4.06(a) Indenture. If the aggregate principal amount of Securities surrendered by holders thereof and other Pari Passu Notes surrendered by holders or lenders, collectively, exceeds $10.0 millionthe amount of Excess Proceeds, the Trustee shall select the Securities and Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Securities and Pari Passu Notes. Pending application Upon completion of Net Available Cash such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. No later than five Business Days after the termination of the Asset Disposition Offer (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Securities and Pari Passu Notes required to be purchased pursuant to this Section 4.06(a)3.5 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Securities and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the Person in whose name a Security is registered at the close of business on such Net Available Cash shall record date, and no Additional Interest will be invested payable to holders who tender Securities pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Securities and Pari Passu Notes or portions of Securities and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Securities and Pari Passu Notes so validly tendered and not properly withdrawn, in Temporary Cash Investments each case in a principal amount of $2,000 and integral multiples of $1,000 in excess thereof. The Company will deliver to the Trustee an Officers’ Certificate stating that such Securities or applied portions thereof were accepted for payment by the Company in accordance with the terms of this Section 3.5 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after termination of the Asset Disposition Offer) mail or deliver to temporarily reduce revolving credit indebtednesseach tendering holder of Securities or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Securities or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Security, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Security to such holder, in a principal amount equal to any unpurchased portion of the Security surrendered; provided that each such new Security will be in a principal amount of $2,000 and integral multiples of $1,000 in excess thereof. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Security not so accepted will be promptly mailed or delivered by the Company to the holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date. For the purposes of this Section 4.06(a)3.5, the following are will be deemed to be cash or cash equivalents: cash:
(1i) the assumption by the transferee of Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the Company or any Indebtedness of a Restricted Subsidiary (other than Guarantor Subordinated Obligations or Disqualified Stock of any Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with Section 3.5(a)(iii)(A) securities above);
(ii) securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event cash within 10 180 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business close of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.Disposition; and
Appears in 1 contract
Samples: Indenture (Deluxe Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectlyconsummate an Asset Disposition, consummate any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as determined in good faith by an Officer of the Company) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be (which, for purposes of this clause (b), consideration will not include any contingent payment obligations related to such Asset Disposition, including, earn-out payments, purchase price adjustments and deferred purchase price payments), is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if Incurred or accrued subsequent to the value date of all non-cash consideration)such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereto if such Incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Board of Directors, an Officer of the shares and assets subject to such Asset Disposition; (2Company) at least 80% of the consideration thereof Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes and the Note Guarantees, that are assumed by the transferee of any such assets and for which the Company and all of its Restricted Subsidiaries have been validly released in writing;
(B) any securities or other obligations received by the Company or such Restricted Subsidiary is in 57
(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Disposition;
(C) any Capital Stock, properties or assets of the kind referred to in clause (b) of the following paragraph; and
(D) cash held in escrow as security for any purchase price settlement, for damages in respect of a breach of representations and warranties or covenants or for payment of other contingent obligations in connection with such Asset Disposition, shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) In Within 365 days after the event receipt of an any Net Cash Proceeds of any Asset Disposition that requires (the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C“Application Period”), the Company shall purchase Securities tendered pursuant or such Restricted Subsidiary, at its option, may apply the Net Cash Proceeds from such Asset Disposition to an offer one or more of the following, or any combination,
(1) to reduce or repay:
(A) First-Priority Lien Obligations;
(B) Obligations under Indebtedness (other than Subordinated Obligations) that is secured by a Lien, which Lien is permitted by this Indenture; or
(C) Indebtedness of a non-Guarantor Subsidiary, other than Indebtedness owed to the Company for or another Restricted Subsidiary; or
(2) to make (1) an Investment in any one or more businesses; provided that such Investment in any business is in the Securities (and such other Senior Subordinated Indebtedness form of the Companyacquisition of Capital Stock of a Restricted Subsidiary or results in the Company or another of its Restricted Subsidiaries owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (2) capital expenditures or (the "Offer"3) at a purchase price acquisitions of 100% of their principal amount (orother properties or assets, in the event such other Senior Subordinated Indebtedness case of each of (1), (2) and (3), used or useful in a Related Business; or
(3) to redeem Notes in accordance with Section 3.07 hereof, to make open market purchases of the Company was issued with significant original issue discount, Notes (to the extent such purchases are at or above 100% of the principal amount thereof), or to make an offer to purchase Notes (in accordance with the procedures set forth below for a Collateral Proceeds Offer or Asset Disposition Offer, as the case may be); provided, that all Net Cash Proceeds used to make such an offer to purchase shall be deemed to have been so applied whether or not accepted by the Holders.
(c) Any Net Cash Proceeds from an Asset Disposition of Collateral that are not invested or applied as provided and within the time period set forth in the second paragraph of this covenant will be deemed to constitute “Collateral Excess Proceeds.” The Issuers shall make an offer to all Holders of the Notes and if required by the terms of any Other Pari Passu Lien Obligations, to the holders of such Other Pari Passu Lien Obligations (a “Collateral Proceeds Offer”), to purchase the maximum aggregate principal amount of the Notes that is in an amount equal to at least $2,000, that may be purchased out of the Collateral Excess Proceeds at an offer price in cash in an amount equal to 100.0% of the principal amount thereof (or accreted value thereof, if less), without premium, plus accrued but and unpaid interest (and Special Interest, if any, or, in respect of such other Senior Subordinated IndebtednessOther Pari Passu Lien Obligations, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness Other Pari Passu Lien Obligations, to the date fixed for the closing of the Company) such offer, in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(cthis Indenture. The Issuers will commence a Collateral Proceeds Offer with respect to Collateral Excess Proceeds within ten Business Days after the date that Collateral Excess Proceeds exceed $10.0 million by delivering the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. The Issuers may, at their election, satisfy the foregoing obligations with respect to any Net Cash Proceeds from an Asset Disposition by making a Collateral Sale Offer with respect to such Net Cash Proceeds prior to the expiration of the relevant 365-day period (or such longer period provided above).
(d) To the extent that the aggregate amount of Notes and such Other Pari Passu Lien Obligations tendered pursuant to a Collateral Sale Offer is less than the Collateral Excess Proceeds, the Issuers may use any remaining Collateral Excess Proceeds for any purpose not prohibited by this Indenture. If the aggregate purchase price principal amount of Securities Notes or such Other Pari Passu Lien Obligations surrendered by such holders thereof exceeds the amount of Collateral Excess Proceeds, the Trustee shall select the Notes and the Issuers shall select such Other Pari Passu Lien Obligations to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such Other Pari Passu Lien Obligations tendered with adjustments as necessary so that no Notes or Other Pari Passu Lien Obligations will be repurchased in part in an unauthorized denomination. Upon completion of any such Collateral Sale Offer, the amount of Collateral Excess Proceeds that resulted in the Collateral Sale Offer shall be reset to zero.
(e) Any Net Cash Proceeds from an Asset Disposition of non-Collateral that are not invested or applied as provided and within the time period set forth in the second paragraph of this covenant will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Issuers shall make an offer to all Holders of the Notes and, if required by the terms of any Senior Indebtedness, to the Holders of such other Senior Subordinated Indebtedness (an “Asset Disposition Offer”), to purchase the maximum aggregate principal amount of the CompanyNotes and such Senior Indebtedness that is in an amount equal to at least $2,000, that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100.0% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest and Special Interest, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuers will commence an Asset Disposition Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $10.0 million by delivering the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. The Issuers may satisfy the foregoing obligations with respect to any Net Cash Proceeds from an Asset Disposition of non-Collateral by making an Asset Disposition Offer with respect to such Net Cash Proceeds prior to the expiration of the relevant 365-day period (or such longer period provided above) or with respect to Excess Proceeds of $5.0 million or less.
(f) To the extent that the aggregate amount of Notes and such Senior Indebtedness tendered pursuant to an Asset Disposition Offer is less than the Offer Excess Proceeds, the Issuers may use any remaining Excess Proceeds for any purpose not prohibited by this Indenture. If the aggregate principal amount of Notes or the Senior Indebtedness surrendered by such holders thereof exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Trustee shall select the Securities Notes and other the Issuers shall select the Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing based on the last day prior to the Purchase Date accreted value or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by Notes or the Holder and a statement Senior Indebtedness tendered with adjustments as necessary so that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only no Notes or Senior Indebtedness will be repurchased in part in an unauthorized denomination. Upon completion of any such Asset Disposition Offer, the amount of Excess Proceeds that resulted in the Asset Disposition Offer shall be issued new Securities equal in principal amount reset to the unpurchased portion of the Securities surrenderedzero.
(4g) At Pending the time the Company delivers Securities to the Trustee which are to be accepted for purchasefinal application of any Collateral Excess Proceeds or Excess Proceeds, the Company shall also deliver an Officers' Certificate stating (or the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Collateral Excess Proceeds or Excess Proceeds in any manner that such Securities are to be accepted is not prohibited by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering HolderIndenture.
(dh) The Company shall comply, to the extent applicable, Issuers will comply with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the purchase repurchase of Securities the Notes pursuant to this Sectionan Asset Disposition Offer or Collateral Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this SectionIndenture, the Company shall Issuers will comply with the applicable securities laws and regulations and shall not be deemed to have breached its their obligations under described in this Section Indenture by virtue of its compliance with such securities laws or regulationsthereof.
Appears in 1 contract
Samples: Indenture (PRETIUM CANADA Co)
Limitation on Sales of Assets and Subsidiary Stock. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company Borrower or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as such Fair Market Value to be determined on the value date of all non-cash consideration), as determined in good faith by the Board of Directors, contractually agreeing to such Asset Disposition) of the shares and Capital Stock or other assets subject to such Asset Disposition; ;
(2b) at least 8075% of the consideration thereof received by the Company Borrower or such Restricted Subsidiary Subsidiary, as the case may be, is in 57the form of cash or Cash Equivalents or Additional Assets (provided that, in the case of Additional Assets, if the assets or property disposed of was Collateral, such Additional Assets shall also be in the form of Collateral), or any combination thereof; and
(ac) except to the extent that the aggregate Net Available Cash from all provisions of Section 2.06(c)(i) are complied with in connection with such Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtednessDisposition. For the purposes of clause (b) of this Section 4.06(a)6.04, the following are will be deemed to be cash or cash equivalents: cash:
(1) the assumption by the transferee of Indebtedness of the Company Borrower or any Indebtedness of a Restricted Subsidiary (other than intercompany Indebtedness, Subordinated Obligations, Capital Stock or Indebtedness owed to an Affiliate of the Borrower) and the release of the Company Borrower or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and Disposition; and
(2) securities securities, notes or other obligations received by the Company Borrower or any Restricted Subsidiary from the transferee that are promptly converted by the Company Borrower or such Restricted Subsidiary into cash.
(b) In the event of an cash within 30 days after receipt thereof. The Borrower will not, and will not permit any Restricted Subsidiary to, engage in any Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C)Swaps, the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, unless in the event such other Senior Subordinated Indebtedness Asset Swap involves the transfer by the Borrower or any Restricted Subsidiary of the Company was issued with significant original issue discountassets having an aggregate Fair Market Value in excess of $20.0 million, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness Asset Swap have been approved by a majority of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness members of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case Board of Directors of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition)Borrower.
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Third Lien Senior Secured Term Loan Agreement (Alta Mesa Holdings, LP)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as such Fair Market Value to be determined on the value date of all non-cash consideration), as determined in good faith by the Board of Directors, contractually agreeing to such Asset Disposition) of the shares and Capital Stock or other assets subject to such Asset Disposition; ;
(2) at least 8075% of the consideration thereof received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in 57the form of cash or Cash Equivalents; and
(3) except as provided in the next paragraph, an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied, within 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, by the Company or such Restricted Subsidiary, as the case may be:
(a) except to prepay, repay, redeem or purchase Indebtedness (other than intercompany Indebtedness, Subordinated Obligations, Capital Stock or Indebtedness owed to an Affiliate of the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied Company); provided, however, that, in accordance connection with this Section 4.06(a) exceeds $10.0 million. Pending application any prepayment, repayment, redemption or purchase of Net Available Cash Indebtedness pursuant to this Section 4.06(aclause (a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on will cause the related commitment to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; or
(b) to invest in Additional Assets or to make capital expenditures in the Oil and Gas Business; provided that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce revolving credit Indebtedness or otherwise invest such Net Available Cash in connection with such Asset Disposition and (2any manner not prohibited by this Indenture. The requirement of clause 3(b) securities received above shall be deemed to be satisfied if a bona fide binding contract committing to make the acquisition referred to therein is entered into by the Company or any of its Restricted Subsidiary from the transferee that are promptly converted by Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding clause (3) and such Net Available Cash is subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Any Net Available Cash from Asset Dispositions that is not applied or such Restricted Subsidiary into cashinvested as provided in the preceding paragraph will be deemed to constitute “Excess Proceeds.
(b) In ” When the event aggregate amount of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C)Excess Proceeds exceeds $20.0 million, within 10 Business Days thereof, the Company shall purchase Securities tendered pursuant to will make an offer (“Asset Disposition Offer”) to all Holders of Securities and, to the extent required by the terms of other Pari Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the Company for to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Securities”) to purchase the maximum principal amount of Securities (and any such other Senior Subordinated Indebtedness Pari Passu Securities to which the Asset Disposition Offer applies that may be purchased out of the Company) (the "Offer") Excess Proceeds, at a purchase an offer price of in cash in an amount equal to 100% of their the principal amount (or, in the event such other Senior Subordinated Pari Passu Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, ) of the Securities and Pari Passu Securities plus accrued but and unpaid interest interest, if any (or, or in respect of such other Senior Subordinated IndebtednessPari Passu Securities, such lesser price, if any, as may be provided for by its terms), to the terms date of such Senior Subordinated Indebtedness purchase (subject to the right of Holders of record on the Company) relevant record date to receive interest due on the relevant interest payment date), in accordance with the procedures (including prorating in the event of over-subscription) set forth in this Section 4.06(c)3.5 or the agreements governing the Pari Passu Securities, as applicable, in each case in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess thereof. If the aggregate purchase price principal amount of Securities (surrendered by Holders thereof and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer Pari Passu Securities surrendered by holders or lenders, collectively, exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Trustee shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations(or, which in the case of Securities issued in global form as discussed in Section 2.1(e) the Trustee will select the Securities will be denominations for purchase based on DTC’s method that most nearly approximates a pro rata selection) on the basis of $1,000 the aggregate principal amount or multiples thereofof tendered Securities and Pari Passu Securities. To the extent that the aggregate amount of Securities and Pari Passu Securities so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than two Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company shall not be will purchase the principal amount of Securities and Pari Passu Securities required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) be purchased pursuant to this Section 4.06 3.5 (the “Asset Disposition Offer Amount”) or, if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an the Asset Disposition Offer is required with respect Amount has been so validly tendered and not properly withdrawn, all Securities and Pari Passu Securities validly tendered and not properly withdrawn in response to the Net Available Cash from Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related interest payment date, any subsequent Asset Disposition).
(1) Promptlyaccrued and unpaid interest will be paid to each Person in whose name a Note is registered at the close of business on such record date, and in any event within 10 days after no further interest will be payable to Holders who tender Securities pursuant to the Company becomes obligated to make an Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Company shall deliver will, to the Trustee extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Securities and sendPari Passu Securities or portions of Securities and Pari Passu Securities so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, by first-class mail to or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Securities and Pari Passu Securities so validly tendered and not properly withdrawn, in each Holder, case in a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in minimum principal amount of $2,000 and integral multiples of $1,000 of principal amount, at the applicable purchase pricein excess thereof. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' ’ Certificate stating that such Securities are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this SectionSection 3.5 and, in addition, the Company will deliver all certificates required, if any, by the agreements governing the Pari Passu Securities. A Security shall be deemed On the Asset Disposition Date, the Company or the paying agent, as the case may be, will mail or deliver to have been each tendering Holder of Securities or holder or lender of Pari Passu Securities, as the case may be, an amount equal to the purchase price of the Securities or Pari Passu Securities so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase at purchase, and the time Company will promptly issue a new Security, and the Trustee, directly upon delivery of an Officers’ Certificate from the Issuers, will authenticate and mail or through deliver such new Security to such Holder, in a principal amount equal to any unpurchased portion of the Security surrendered; provided that each such new Security will be in a minimum principal amount of $2,000 or an agentintegral multiple of $1,000 in excess thereof. In addition, mails the Company will take any and all other actions required by the agreements governing the Pari Passu Securities. Any Security not so accepted will be promptly mailed or delivers payment therefor delivered by the Issuers to the surrendering Holder.
(d) Holder thereof. The Company shall will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date. The Company will comply, to the extent applicable, with the requirements of Section 14(e) Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities pursuant to this Sectionan Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 3.5, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulations. For the purposes of clause (2) of the first paragraph of this Section 3.5, the following will be deemed to be cash:
(1) the assumption by the transferee of Indebtedness of the Company or Indebtedness of a Restricted Subsidiary (other than intercompany Indebtedness, Subordinated Obligations, Capital Stock or Indebtedness owed to an Affiliate of the Company) and the release of such Issuers or Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition;
(2) with respect to any Asset Disposition of oil and natural gas properties by the Company or any of its Restricted Subsidiaries where the Company or such Restricted Subsidiary retains an interest in such property, any agreement by the transferee (or an Affiliate thereof) to pay all or a portion of the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto;
(3) any Additional Assets;
(4) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (4), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(5) securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 30 days after receipt thereof.
Appears in 1 contract
Samples: Indenture (Alta Mesa Holdings, LP)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company Issuer shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectlyconsummate an Asset Disposition, consummate any Asset Disposition unless unless:
(1) the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, Fair Market Value of the shares and assets subject sold or otherwise disposed of (measured as of the date of the definitive agreement with respect to such Asset Disposition); and
(2) at least 8075% of the consideration thereof therefor received by the Company Issuer or such Restricted Subsidiary is in 57
Subsidiary, as the case may be (a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a)which, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the for purposes of this Section 4.06(aclause (2), consideration will not include any contingent payment obligations related to such Asset Disposition, including, earn-out payments, purchase price adjustments and deferred purchase price payments), is in the following are deemed to be form of cash or cash equivalents: Cash Equivalents; provided that the amount of:
(1A) any liabilities, as shown on the assumption of Indebtedness Issuer’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto, of the Company Issuer or any of its Restricted Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) (i) that are assumed by the transferee of any such assets, or (ii) in respect of which neither the Issuer nor any Restricted Subsidiary and following such Asset Disposition has any obligation;
(B) any securities or other obligations received by the release of the Company Issuer or such Restricted Subsidiary from all liability on such Indebtedness transferee that are converted by the Issuer or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Disposition;
(C) any Capital Stock, properties or assets of the kind referred to in Section 4.11(b)(2);
(D) cash held in escrow as security for any purchase price settlement, for damages in respect of a breach of representations and warranties or covenants or for payment of other contingent obligations in connection with such Asset Disposition and Disposition; and
(2E) securities any Designated Noncash Consideration received by the Company Issuer or any Restricted Subsidiary from in such Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed the transferee that are promptly converted by greater of (x) $20.0 million and (y) 2.0% of the Company or Total Assets of the Issuer at the time of the receipt of such Restricted Subsidiary into cashDesignated Noncash Consideration, with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value, in each case, shall be deemed to be Cash Equivalents for purposes of this provision and for no other purpose.
(b) In Within 365 days after the event receipt of an any Net Cash Proceeds of any Asset Disposition, the Issuer or such Restricted Subsidiary, at its option, may apply the Net Cash Proceeds from such Asset Disposition that requires to one or more of the purchase of Securities following, or any combination,
(and other 1) to reduce or repay:
(A) to permanently repay Secured Indebtedness or unsecured Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), Issuer or the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount Guarantors (or, in each case, make an offer to repurchase or redeem such Indebtedness; provided that such repurchase or redemption or offer for repurchase or redemption closes within 45 days after the event end of such other Senior Subordinated 365-day period); provided, that if such debt constitutes revolving Indebtedness, commitments for such revolving Indebtedness must be reduced by an amount equal to such repayment; or
(B) to the extent the property that is subject to such Asset Disposition was sold by a non-Guarantor Subsidiary, Indebtedness of a non-Guarantor Subsidiary, other than Indebtedness owed to the Company was issued with significant original issue discount, 100% Issuer or another Restricted Subsidiary; or
(2) to make (A) an Investment in any one or more businesses; provided that such Investment in any business is in the form of the accreted value thereof)acquisition of Capital Stock of a Restricted Subsidiary or results in the Issuer or its Restricted Subsidiaries owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, without premium, plus accrued but unpaid interest (or, B) capital expenditures in respect of such the Issuer, its Restricted Subsidiaries or their respective assets or (C) acquisitions of other Senior Subordinated Indebtedness, such lesser price, if any, as may properties or assets to be provided for held by the terms Issuer or its Restricted Subsidiaries (including assets that replace the business, properties and assets of the Issuer or any of its Restricted Subsidiaries that were the subject of such Senior Subordinated Indebtedness Asset Disposition), in the case of each of (A), (B) and (C), used or useful in a Related Business; or
(3) to reduce or repay Obligations under the Notes in accordance with the provision set forth under Section 3.07, through open market purchases of the Company) Notes or through an offer to purchase Notes (in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(cbelow for an Asset Disposition Offer). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the ; provided, that all Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required Proceeds used to make such an Offer offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been so applied whether or not accepted by the Holders; provided that a binding commitment to apply Net Cash Proceeds as set forth in Section 4.11(b)(2) shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment so long as the Issuer or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 180 days of the end of such 365-day period (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for purchase at any reason before the time Net Cash Proceeds are applied in connection therewith, then the TrusteeIssuer or such Restricted Subsidiary shall be permitted to apply the Net Cash Proceeds in any manner set forth above before the expiration of such 180-day period and, directly in the event the Issuer or through an agentsuch Restricted Subsidiary fails to do so, mails or delivers payment therefor to the surrendering Holderthen such Net Cash Proceeds shall constitute Excess Proceeds (as defined below).
(dc) The Company shall comply, to Any Net Cash Proceeds from an Asset Disposition that are not invested or applied as provided and within the extent applicable, with the requirements of time period set forth in Section 14(e4.11(b) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not will be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.to
Appears in 1 contract
Samples: Indenture
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless UNLESS:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of contractually agreeing to such Asset Disposition at least equal to the fair market value value, as determined in good faith by the Board of Directors (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; ;
(2) at least 8075% of the consideration thereof from such Asset Disposition received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in 57the form of cash or Cash Equivalents; and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company or such Restricted Subsidiary, as the case may be:
(a) except FIRST, to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Senior Indebtedness), to prepay, repay or purchase Senior Indebtedness or Indebtedness (other than any Disqualified Stock or Guarantor Subordinated Obligation) of a Restricted Subsidiary and that is a Subsidiary Guarantor (in each case other than Indebtedness owed to the release Company or an Affiliate of the Company) within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; PROVIDED, HOWEVER, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary from all liability on will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in connection an amount equal to the principal amount so prepaid, repaid or purchased; and
(b) SECOND, to the extent of the balance of such Net Available Cash after application in accordance with such Asset Disposition and clause (2) securities received by a), to the Company or any Restricted Subsidiary from the transferee that are promptly converted by extent the Company or such Restricted Subsidiary into cash.
(b) In elects, to invest in Additional Assets within 365 days from the event later of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (Asset Disposition or the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest receipt of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to Net Available Cash; PROVIDED that pending the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice final application of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the such Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
clause (3b) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
clause (4a) At the time the Company delivers Securities to the Trustee which are to be accepted for purchaseabove, the Company shall also deliver an Officers' Certificate stating that and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Securities are to be accepted Net Available Cash in any manner not prohibited by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering HolderIndenture.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Indenture (Montgomery Open Mri LLC)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, Fair Market Value of the shares and assets subject to such Asset Disposition; ;
(2) at least 8075% of the consideration thereof received by the Company or such Restricted Subsidiary is in 57the form of cash, Temporary Cash Investments, assets useful in a Permitted Business or Permitted Securities; provided, that the amount of any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Disposition shall be deemed to be cash for the purposes of this provision (but for no other purpose) so long as such amount, taken together with the Fair Market Value when received of all other Designated Noncash Consideration that is at that time outstanding
(ai. e., that has not been sold for or otherwise converted into cash or Permitted Securities), does not exceed $50.0 million; provided, further, that with respect to the sale of one or more properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such properties so long as such Indebtedness is secured by a first priority Lien on the properties sold; and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) within 540 days after the later of the date of such Asset Disposition and the receipt of such Net Available Cash:
(A) to prepay, repay, purchase, repurchase, redeem, retire, defease or otherwise acquire for value Secured Indebtedness of the Company or a Subsidiary Guarantor or Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, in each case other than Indebtedness owed to the Company or an Affiliate of the Company;
(B) to reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary) or make one or more capital expenditures; or
(C) (i) to redeem the Notes or make open market purchases thereof at a price not less than 100% of the principal amount thereof or (ii) to make an Asset Sale Offer to purchase Notes pursuant to and subject to the conditions set forth in paragraph (b) of this Section 4.10; provided, however, that if the Company elects (or is required by the terms of any Pari Passu Indebtedness), such Asset Sale Offer may be made ratably (determined based upon the respective principal amounts of the Notes and such Pari Passu Indebtedness being purchased or repaid) to purchase the Notes and to purchase or otherwise repay such Pari Passu Indebtedness; provided that pending final application of any such Net Available Cash in accordance with clause (A), (B) or (C) above, the Company and the Restricted Subsidiaries may temporarily reduce revolving Indebtedness outstanding under the Credit Agreement or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. To the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B) and (C) above, the Company or such Restricted Subsidiary, as the case may be, may use such balance for any general corporate purpose not prohibited by the terms of this Indenture. In connection with any prepayment, repayment, purchase, repurchase, redemption, retirement, defeasance or other acquisition for value of Indebtedness pursuant to clause (A) or (C) above, the Company or such Restricted Subsidiary, as the case may be, will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased, repurchased, redeemed, retired, defeased or otherwise acquired for value. Notwithstanding the foregoing provisions of this Section 4.10, the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance with this covenant except to the extent that the aggregate Net Available Cash from all Asset Dispositions which that is not applied in accordance with this Section 4.06(a) covenant exceeds $10.0 50.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a)4.10, the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.:
Appears in 1 contract
Samples: Indenture (Orbital Atk, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as such Fair Market Value to be determined on the value date of all non-cash consideration), as determined in good faith by the Board of Directors, contractually agreeing to such Asset Disposition) of the shares and or other assets subject to such Asset Disposition; and
(2) at least 8075% of the aggregate consideration thereof received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, from such Asset Disposition and all other Asset Dispositions since December 12, 2013, on a cumulative basis, is in 57the form of cash or Cash Equivalents or Additional Assets, or any combination thereof.
(ab) except to the extent that the aggregate The Net Available Cash from all such Asset Dispositions which Disposition may be applied, within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, by the Company or such Restricted Subsidiary, as the case may be:
(1) to prepay, repay, redeem or purchase Pari Passu Indebtedness of the Company (including the Notes) or a Subsidiary Guarantor or any Indebtedness (other than Disqualified Stock) of a Restricted Subsidiary that is not applied a Subsidiary Guarantor (in accordance each case, excluding Indebtedness owed to the Company or an Affiliate of the Company); provided, however, that, in connection with this Section 4.06(a) exceeds $10.0 million. Pending application any prepayment, repayment, redemption or purchase of Net Available Cash Indebtedness pursuant to this Section 4.06(a4.11(b)(1), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in connection with such Asset Disposition and an amount equal to the principal amount so prepaid, repaid, redeemed or purchased; or
(2) securities received to make capital expenditures in the Oil and Gas Business or to invest in Additional Assets; provided, that pending the final application of any such Net Available Cash in accordance with clause (1) or clause (2) of this Section 4.11(b), the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. The requirement of clause (2) of this Section 4.11(b) shall be deemed to be satisfied if an agreement committing to make the acquisition or expenditure referred to therein is entered into by the Company or any a Restricted Subsidiary from within the transferee that are promptly converted by the Company or specified time period and such Restricted Subsidiary into cashNet Available Cash is subsequently applied in accordance with such agreement within six months following such agreement.
(bc) In Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in Section 4.11(b) will be deemed to constitute “Excess Proceeds.” Not later than the event 366th day from the later of an the date of such Asset Disposition that requires or the purchase receipt of Securities (and other Senior Subordinated Indebtedness such Net Available Cash, if the aggregate amount of the Company) pursuant to Section 4.06(a)(3)(C)Excess Proceeds exceeds $20.0 million, the Company shall purchase Securities tendered pursuant will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Pari Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the Company for to make an offer to purchase such Pari Passu Indebtedness with the Securities proceeds from any Asset Disposition (“Pari Passu Notes”) to purchase the maximum principal amount of Notes and any such other Senior Subordinated Indebtedness Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Company) (the "Offer") Excess Proceeds, at a purchase an offer price of in cash in an amount equal to 100% of their the principal amount (or, in the event such other Senior Subordinated Pari Passu Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, ) of the Notes and Pari Passu Notes plus accrued but and unpaid interest interest, if any (or, or in respect of such other Senior Subordinated Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness Indebtedness), to the date of purchase (subject to the Company) right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c)this Indenture or the agreements governing the Pari Passu Notes, as applicable, in each case in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000. If the aggregate purchase price principal amount of Securities (Notes surrendered by Holders thereof and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer Pari Passu Notes surrendered by Holders or lenders, collectively, exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Trustee shall select the Securities and other Senior Subordinated Indebtedness Notes to be purchased on a pro rata basis but in round denominations, which in on the case basis of the Securities will be denominations of $1,000 aggregate principal amount or multiples thereofof tendered Notes and Pari Passu Notes. To the extent that the aggregate principal amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to the Articles IV and V of this Indenture. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(d) The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company shall not be will purchase the principal amount of Notes and Pari Passu Notes required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) be purchased pursuant to this Section 4.06 4.11 (the “Asset Disposition Offer Amount”) or, if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an the Asset Disposition Offer is required with respect Amount has been so validly tendered and not properly withdrawn, all Notes and Pari Passu Notes validly tendered and not properly withdrawn in response to the Net Available Cash from any subsequent Asset Disposition)Disposition Offer.
(1e) PromptlyIf the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and in any event within 10 days after no further interest will be payable to Holders who tender Notes pursuant to the Company becomes obligated to make an Asset Disposition Offer.
(f) On or before the Asset Disposition Purchase Date, the Company shall deliver will, to the Trustee extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and sendPari Passu Notes or portions of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, by first-class mail to or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Notes so validly tendered and not properly withdrawn, in each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either case in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in minimum principal amount of $2,000 and integral multiples of $1,000 in excess of principal amount, at the applicable purchase price$2,000. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' ’ Certificate stating that such Securities are to be Notes or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this SectionSection 4.11 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. A Security shall be deemed The Company or the paying agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Disposition Offer Period) mail or deliver to have been each tendering Holder of Notes or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Notes or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase at purchase, and the time Company will promptly issue a new Note, and the Trustee, directly upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or through deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided, that each such new Note will be in a minimum principal amount of $2,000 or an agentintegral multiple of $1,000 in excess of $2,000. In addition, mails the Company will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Note not so accepted will be promptly mailed or delivers payment therefor delivered by the Company to the surrendering HolderHolder thereof. The Company will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date.
(dg) The Company shall will comply, to the extent applicable, with the requirements of Section 14(e) Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this Sectionan Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 4.11, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulations.
(h) For the purposes of clause (2) of Section 4.11(a) above, the following will be deemed to be cash:
(1) the assumption by the transferee of Indebtedness or other obligations appearing on the consolidated balance sheet of the Company (other than Subordinated Obligations or Disqualified Stock) of the Company or Indebtedness or other obligations of a Restricted Subsidiary appearing on the consolidated balance sheet of the Company (other than Guarantor Subordinated Obligations or Disqualified Stock of any Restricted Subsidiary that is a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition (in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with Section 4.11(b)(1)); and
(2) securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days after receipt thereof.
Appears in 1 contract
Samples: Indenture (Ultra Petroleum Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless unless
(1i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; , as such fair market value may be determined (2and shall be determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $50.0 million) in good faith by the Board of Directors, whose determination shall be conclusive (including as to the value of all noncash consideration),
(ii) in the case of any Asset Disposition (or series of related Asset Dispositions) having a fair market value in excess of $50.0 million, at least 8075% of the consideration thereof therefor (excluding, in the case of an Asset Disposition (or series of related Asset Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, that are not Indebtedness) received by the Company or such Restricted Subsidiary is in 57the form of cash, and
(aiii) an amount equal to 100% (or 50% if immediately after giving effect to such Asset Disposition as if it had occurred at the beginning of the most recently ended four full fiscal quarters for which consolidated financial statements of the Company are available, the Consolidated Total Leverage Ratio would have been less than or equal to 3.25:1.00) of the Net Available Cash from such Asset Disposition is applied by the Company (or any Restricted Subsidiary, as the case may be) as follows within 450 days after the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash (a binding commitment entered into within such 450 day period shall be treated as a permitted application of the Net Available Cash so long as such Net Available Cash shall be applied to satisfy such commitment within 180 days of the date of such commitment):
(A) first, either (x) to the extent the Company elects (or is required by the terms of any Bank Indebtedness, any Senior Indebtedness of the Company or any Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness (in each case other than Indebtedness owed to the Company or a Restricted Subsidiary), or (y) to the extent the Company or such Restricted Subsidiary elects, to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Company or another Restricted Subsidiary), provided that if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than the period described in Section 6.9(a)(iii) above to complete, within the period of time necessary to complete such project;
(B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above (such balance, the “Excess Proceeds”), to make an offer to purchase Notes and (to the extent the Company or such Restricted Subsidiary elects, or is required by the terms thereof) to purchase, redeem or repay any other Senior Indebtedness of the Company or a Restricted Subsidiary, pursuant and subject to Section 6.9(b) and Section 6.9(c) and the agreements governing such other Indebtedness; and
(C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) above, to fund (to the extent consistent with any other applicable provision of this Indenture) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A)(x) or (B) above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 6.9, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 6.9 except to the extent that the aggregate Net Available Cash from all Asset Dispositions which or equivalent amount that is not applied in accordance with this Section 4.06(a) 6.9 exceeds $10.0 100.0 million. Pending application If the aggregate principal amount of Net Available Cash Notes or other Indebtedness of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to this Section 4.06(a)clause (B) above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Net Available Cash shall be invested Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in Temporary Cash Investments respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding principal amount of such Notes and the denominator of which is the sum of the outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or applied to temporarily reduce revolving credit indebtednessa Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn. For the purposes of this Section 4.06(a)clause (ii) of paragraph (a) above, the following are deemed to be cash or cash equivalentscash: (1) Temporary Cash Investments and Cash Equivalents, (2) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition Disposition, (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (24) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cashcash within 180 days, (5) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary, (6) Additional Assets and (7) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause, not to exceed an aggregate amount at any time outstanding equal to the greater of $165.0 million and 5.75% of Consolidated Total Assets (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) Notes pursuant to Section 4.06(a)(3)(C6.9(a)(iii)(B), the Company shall will be required to purchase Securities Notes tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) Notes (the "“Offer"”) at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but and unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by to the terms of such Senior Subordinated Indebtedness of the Company) Purchase Date in accordance with the procedures (including prorating in the event of over-subscriptionoversubscription) set forth in Section 4.06(c6.9(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) Notes tendered pursuant to the Offer exceeds is less than the Net Available Cash allotted to their purchasethe purchase of Notes, the remaining Net Available Cash will be available to the Company shall select the Securities and for use in accordance with Section 6.9(a)(iii)(B) (to repay other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount Company or multiples thereofa Restricted Subsidiary) or Section 6.9(a)(iii)(C). The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) for Notes pursuant to this Section 4.06 6.9 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 6.9(a)(iii)(A)) is less than $10.0 100.0 million for any particular Asset Disposition (which lesser amount amounts shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). No Note will be repurchased in part if less than the Minimum Denomination in original principal amount of such Note would be left outstanding.
(1c) PromptlyThe Company shall, and in any event within 10 not later than 45 days after the Company becomes obligated to make an OfferOffer pursuant to this Section 6.9, the Company shall deliver mail a notice to each Holder with a copy to the Trustee stating: (1) that an Asset Disposition that requires the purchase of a portion of the Notes has occurred and send, by first-class mail to each Holder, a written notice stating that such Holder has the Holder may elect to have his Securities purchased by the Company either in whole or in part right (subject to the prorating as described in Section 4.06(bbelow) in to require the event the Offer is oversubscribed) in integral multiples Company to purchase a portion of $1,000 of principal amount, such Holder’s Notes at the applicable purchase price. The notice shall specify a purchase price in cash equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date not less of purchase (subject to Section 3.9); (2) the circumstances and relevant facts and financial information regarding such Asset Disposition; (3) the repurchase date (which shall be no earlier than 30 days nor more later than 60 days after from the date of such notice is mailed; (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A4) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of instructions determined by the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent consistent with this Section 6.9, that a Holder must follow in order to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, have its Notes purchased; and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A5) the amount of the Offer (the "Offer Amount")Offer. If, including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon upon the expiration of the period for which the Offer remains open (open, the "Offer Period")aggregate principal amount of Notes surrendered by Holder exceeds the amount of the Offer, the Company shall deliver to select the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are Notes to be accepted by the Company. The Trustee shall, purchased on the Purchase Date, mail or deliver payment a pro rata basis (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered with such adjustments as may be deemed appropriate by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the so that only Notes in denominations of $2,000 or integral multiples of $1,000 in excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased thereof shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder).
(d) The Company shall will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this SectionSection 6.9. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 6.9, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section 6.9 by virtue thereof.
(e) Notwithstanding any other provisions of this Section 6.9, (i) to the extent that any of or all the Net Available Cash of any Asset Disposition received or deemed to be received by a Foreign Subsidiary (a “Foreign Disposition”) is (x) prohibited or delayed by applicable local law, (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous organizational or administrative impediments from being repatriated to the United States, the portion of such Net Available Cash so affected will not be required to be applied in compliance with this Section 6.9, and such amounts may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law, documents or agreements will not permit repatriation to the United States (the Company hereby agreeing to use reasonable efforts (as determined in the Company’s reasonable business judgment) to otherwise cause the applicable Foreign Subsidiary to within one year following the date on which the respective payment would otherwise have been required, promptly take all commercially reasonable actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation), and if within one year following the date on which the respective payment would otherwise have been required, such repatriation of any of such affected Net Available Cash is permitted under the applicable law, applicable organizational impediments or other impediment, such repatriation will be promptly effected and the amount of such repatriated Net Available Cash will be promptly (and in any event not later than five (5) Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) in compliance with this Section 6.9 and (ii) to the extent that the Company has determined in good faith that repatriation of any of or all the Net Available Cash of any Foreign Disposition would have an adverse tax consequence (which for the avoidance of doubt, includes, but is not limited to, any repatriation whereby doing so the Company, any of its compliance Subsidiaries or any of their respective affiliates and/or equity owners would incur a tax liability, including as a result of a dividend or deemed dividend, or a withholding tax) with respect to such securities laws Net Available Cash, the Net Available Cash so affected may be retained by the applicable Foreign Subsidiary. The non-application of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or regulationsan Event of Default.
Appears in 1 contract
Samples: Fifth Supplemental Indenture (Sally Beauty Holdings, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as such Fair Market Value to be determined on the value date of all non-cash consideration), as determined in good faith by the Board of Directors, contractually agreeing to such Asset Disposition) of the shares and Capital Stock or other assets subject to such Asset Disposition; ;
(2) at least 8075% of the consideration thereof received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in 57the form of cash or Cash Equivalents or Additional Assets, or any combination thereof; and
(3) except as provided in the next paragraph, an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied, within 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, by the Company or such Restricted Subsidiary, as the case may be:
(a) except to prepay, repay, redeem or purchase Indebtedness (other than intercompany Indebtedness, Subordinated Obligations, Capital Stock or Indebtedness owed to an Affiliate of the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied Company); provided, however, that, in accordance connection with this Section 4.06(a) exceeds $10.0 million. Pending application any prepayment, repayment, redemption or purchase of Net Available Cash Indebtedness pursuant to this Section 4.06(aclause (a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness will cause the related commitment to be permanently reduced in connection with such Asset Disposition and (2) securities received by an amount equal to the Company principal amount so prepaid, repaid, redeemed or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.purchased; or
(b) In to invest in Additional Assets or to make capital expenditures in the event Oil and Gas Business; provided that pending the final application of an Asset Disposition that requires the purchase of Securities any such Net Available Cash in accordance with clause (and other Senior Subordinated Indebtedness of the Companya) pursuant to Section 4.06(a)(3)(C)or clause (b) above, the Company shall purchase Securities tendered pursuant and its Restricted Subsidiaries may temporarily reduce revolving credit Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in the preceding paragraph will be deemed to constitute “Excess Proceeds.” Not later than the 360th day from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds exceeds $20.0 million, the Company will make an offer (“Asset Disposition Offer”) to all Holders of Securities and, to the extent required by the terms of other Pari Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the Company for to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Securities”) to purchase the maximum principal amount of Securities (and any such other Senior Subordinated Indebtedness Pari Passu Securities to which the Asset Disposition Offer applies that may be purchased out of the Company) (the "Offer") Excess Proceeds, at a purchase an offer price of in cash in an amount equal to 100% of their the principal amount (or, in the event such other Senior Subordinated Pari Passu Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, ) of the Securities and Pari Passu Securities plus accrued but and unpaid interest interest, if any (or, or in respect of such other Senior Subordinated IndebtednessPari Passu Securities, such lesser price, if any, as may be provided for by its terms), to the terms date of such Senior Subordinated Indebtedness purchase (subject to the right of Holders of record on the Company) relevant record date to receive interest due on the relevant interest payment date), in accordance with the procedures (including prorating in the event of over-subscription) set forth in this Section 4.06(c)3.5 or the agreements governing the Pari Passu Securities, as applicable, in each case in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess thereof. If the aggregate purchase price principal amount of Securities (surrendered by Holders thereof and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer Pari Passu Securities surrendered by holders or lenders, collectively, exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Trustee shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations(or, which in the case of Securities issued in global form as discussed in Section 2.1(e) the Trustee will select the Securities will be denominations for purchase based on DTC’s method that most nearly approximates a pro rata selection) on the basis of $1,000 the aggregate principal amount or multiples thereofof tendered Securities and Pari Passu Securities. To the extent that the aggregate amount of Securities and Pari Passu Securities so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than two Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company shall not be will purchase the principal amount of Securities and Pari Passu Securities required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) be purchased pursuant to this Section 4.06 3.5 (the “Asset Disposition Offer Amount”) or, if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an the Asset Disposition Offer is required with respect Amount has been so validly tendered and not properly withdrawn, all Securities and Pari Passu Securities validly tendered and not properly withdrawn in response to the Net Available Cash from Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related interest payment date, any subsequent Asset Disposition).
(1) Promptlyaccrued and unpaid interest will be paid to each Person in whose name a Note is registered at the close of business on such record date, and in any event within 10 days after no further interest will be payable to Holders who tender Securities pursuant to the Company becomes obligated to make an Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Company shall deliver will, to the Trustee extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Securities and sendPari Passu Securities or portions of Securities and Pari Passu Securities so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, by first-class mail to or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Securities and Pari Passu Securities so validly tendered and not properly withdrawn, in each Holder, case in a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in minimum principal amount of $2,000 and integral multiples of $1,000 of principal amount, at the applicable purchase pricein excess thereof. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' ’ Certificate stating that such Securities are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this SectionSection 3.5 and, in addition, the Company will deliver all certificates required, if any, by the agreements governing the Pari Passu Securities. A Security shall be deemed On the Asset Disposition Date, the Company or the paying agent, as the case may be, will mail or deliver to have been each tendering Holder of Securities or holder or lender of Pari Passu Securities, as the case may be, an amount equal to the purchase price of the Securities or Pari Passu Securities so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase at purchase, and the time Company will promptly issue a new Security, and the Trustee, directly upon delivery of an Officers’ Certificate from the Issuers, will authenticate and mail or through deliver such new Security to such Holder, in a principal amount equal to any unpurchased portion of the Security surrendered; provided that each such new Security will be in a minimum principal amount of $2,000 or an agentintegral multiple of $1,000 in excess thereof. In addition, mails the Company will take any and all other actions required by the agreements governing the Pari Passu Securities. Any Security not so accepted will be promptly mailed or delivers payment therefor delivered by the Issuers to the surrendering Holder.
(d) Holder thereof. The Company shall will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date. The Company will comply, to the extent applicable, with the requirements of Section 14(e) Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities pursuant to this Sectionan Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 3.5, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulations. For the purposes of clause (2) of the first paragraph of this Section 3.5, the following will be deemed to be cash:
(1) the assumption by the transferee of Indebtedness of the Company or Indebtedness of a Restricted Subsidiary (other than intercompany Indebtedness, Subordinated Obligations, Capital Stock or Indebtedness owed to an Affiliate of the Company) and the release of such Issuers or Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition; and
(2) securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 30 days after receipt thereof. The Company will not, and will not permit any Restricted Subsidiary to, engage in any Asset Swaps, unless in the event such Asset Swap involves the transfer by the Company or any Restricted Subsidiary of assets having an aggregate Fair Market Value in excess of $20.0 million, the terms of such Asset Swap have been approved by a majority of the members of the Board of Directors of the Company.
Appears in 1 contract
Samples: Indenture (Alta Mesa Energy LLC)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly cause, make or indirectly, consummate suffer to exist any Asset Disposition unless unless:
(1i) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors of the Company (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; ;
(2ii) at least 8075% of the consideration thereof from such Asset Disposition received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in 57the form of cash or Cash Equivalents; and
(aiii) except an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company or such Restricted Subsidiary, at its option:
(A) to prepay, repay or purchase Indebtedness of the Company (other than any Disqualified Stock or Subordinated Obligations) or Indebtedness of a Restricted Subsidiary (other than any Disqualified Stock or Guarantor Subordinated Obligations of a Subsidiary Guarantor) (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 3.5(a)(iii)(A), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; or
(B) to invest in Additional Assets within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash, provided that a binding commitment shall be treated as a permitted application of the Net Available Cash from the date of such commitment and, in the event such binding commitment is later canceled or terminated for any reason before such Net Available Cash is so applied, the Company or such Restricted Subsidiary enters into another binding commitment within nine months of such cancellation or termination of the prior binding commitment, provided, further, that any such binding commitment to invest shall be subject to customary conditions (other than financing). Pending the final application of any such Net Available Cash in accordance with Section 3.5(a)(iii)(A) or Section 3.5(a)(iii)(B) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in Section 3.5(a)(iii) will be deemed to constitute “Excess Proceeds.” On the 366th day after an Asset Disposition, if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all holders of Securities and to the extent required by the terms of other Pari Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Disposition to purchase the maximum principal amount of Securities and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Securities and Pari Passu Indebtedness plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, in each case in a principal amount of $2,000 and integral multiples of $1,000 in excess thereof. To the extent that the aggregate Net Available Cash from all amount of Securities and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Dispositions which Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not applied in accordance with prohibited by this Section 4.06(a) Indenture. If the aggregate principal amount of Securities surrendered by holders thereof and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds $10.0 millionthe amount of Excess Proceeds, the Trustee shall select the Securities and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Securities and Pari Passu Indebtedness. Pending application Upon completion of Net Available Cash such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. No later than five Business Days after the termination of the Asset Disposition Offer (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Securities and Pari Passu Indebtedness required to be purchased pursuant to this Section 4.06(a)3.5 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Securities and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the Person in whose name a Security is registered at the close of business on such Net Available Cash shall record date, and no Additional Interest will be invested payable to holders who tender Securities pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Securities and Pari Passu Indebtedness or portions of Securities and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Securities and Pari Passu Indebtedness so validly tendered and not properly withdrawn, in Temporary Cash Investments each case in a principal amount of $2,000 and integral multiples of $1,000 in excess thereof. The Company will deliver to the Trustee an Officers’ Certificate stating that such Securities or applied portions thereof were accepted for payment by the Company in accordance with the terms of this Section 3.5 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Indebtedness. The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after termination of the Asset Disposition Offer) mail or deliver to temporarily reduce revolving credit indebtednesseach tendering holder of Securities or holder or lender of Pari Passu Indebtedness, as the case may be, an amount equal to the purchase price of the Securities or Pari Passu Indebtedness so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Security, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Security to such holder, in a principal amount equal to any unpurchased portion of the Security surrendered; provided that each such new Security will be in a principal amount of $2,000 and integral multiples of $1,000 in excess thereof. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Indebtedness. Any Security not so accepted will be promptly mailed or delivered by the Company to the holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date. For the purposes of this Section 4.06(a)3.5, the following are will be deemed to be cash or cash equivalents: cash:
(1i) the assumption by the transferee of Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the Company or any Indebtedness of a Restricted Subsidiary (other than Guarantor Subordinated Obligations or Disqualified Stock of any Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with Section 3.5(a)(iii)(A) securities above);
(ii) securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event cash within 10 180 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business close of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.Disposition; and
Appears in 1 contract
Samples: Indenture (Deluxe Corp)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless: (1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; (2) at least 8075% of the consideration thereof from such Asset Disposition received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in 57
the form of cash or Cash Equivalents; and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company or such Restricted Subsidiary, as the case may be: (A) first, to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness), to prepay, repay or purchase Indebtedness of the Company (other than any Disqualified Stock or Subordinated Obligations) or Indebtedness of a Restricted Subsidiary (other than any Disqualified Stock or Guarantor Subordinated Obligation of a Subsidiary Guarantor) (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (A), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; provided, further, that the Company or such Restricted Subsidiary shall not be required to reduce the related commitment (if at all) to an aggregate principal amount less than $175.0 million; and (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company or such Restricted Subsidiary elects, to invest in Additional Assets within 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by the Indenture.
(b) Any Net Available Cash from Asset Dispositions that are not applied or invested as provided in Section 3.6(a) will be deemed to constitute "Excess Proceeds." On the 361st day after an Asset Disposition, if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer ("Asset Sale Offer") to all Holders of Securities and to the extent required by the terms of other Pari Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Disposition ("Pari Passu Notes"), to purchase the maximum principal amount of Securities and any such Pari Passu Notes to which the Asset Sale Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Securities and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000. To the extent that the aggregate amount of Securities and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Securities surrendered by Holders of the Securities and other Pari Passu Notes surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select the Securities and Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Securities and Pari Passu Notes. Upon completion of such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(1) The Asset Sale Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the aggregate Net Available Cash from all "Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 millionSale Offer Period"). Pending application No later than five Business Days after the termination of Net Available Cash the Asset Sale Offer Period (the "Asset Sale Purchase Date"), the Company will purchase the principal amount of Securities and Pari Passu Notes required to be purchased pursuant to this Section 4.06(a)3.6 (the "Asset Sale Offer Amount") or, if less than the Asset Sale Offer Amount has been so validly tendered, all Securities and Pari Passu Notes validly tendered in response to the Asset Sale Offer.
(2) If the Asset Sale Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the Person in whose name a Security is registered at the close of business on such Net Available Cash shall record date, and no additional interest will be invested payable to Holders who tender Securities pursuant to the Asset Sale Offer.
(3) On or before the Asset Sale Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Sale Offer Amount of Securities and Pari Passu Notes or portions of Securities and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to the Asset Sale Offer, or if less than the Asset Sale Offer Amount has been validly tendered and not properly withdrawn, all Securities and Pari Passu Notes so validly tendered and not properly withdrawn, in Temporary Cash Investments each case in integral multiples of $1,000. The Company will deliver to the Trustee an Officers' Certificate stating that such Securities or applied portions thereof were accepted for payment by the Company in accordance with the terms of this Section 3.6 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after termination of the Asset Sale Offer Period) mail or deliver to temporarily reduce revolving credit indebtednesseach tendering Holder of Securities or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Securities or Pari Passu Notes so validly tendered and not properly withdrawn by such Holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Security, and the Trustee, upon delivery of an Officers' Certificate from the Company will authenticate and mail or deliver such new Security to such Holder, in a principal amount equal to any unpurchased portion of the Security surrendered; provided that each such new Security will be in a principal amount of $1,000 or an integral multiple of $1,000. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Security not so accepted will be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Asset Sale Purchase Date. For the purposes of this Section 4.06(a)3.6, the following are will be deemed to be cash or cash equivalents: cash:
(1) the assumption by the transferee of Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the Company or any Indebtedness of a Restricted Subsidiary (other than Guarantor Subordinated Obligations or Disqualified Stock) of any Subsidiary Guarantor and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (in which case the Company will, without further action, be deemed to have applied such deemed cash to Indebtedness in accordance with Section 3.6(a)(3)(A)); and
(2) securities securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities pursuant to this SectionIndenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 3.6, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulationsany conflict.
Appears in 1 contract
Samples: Indenture (Georgia Gulf Corp /De/)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition with respect to First-Priority Collateral unless (1i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares Capital Stock and assets subject to such Asset Disposition; , (2ii) at least 8075% of the consideration thereof received by the Company or such Restricted Subsidiary is in 57the form of (A) cash or Temporary Cash Investments, (B) First-Priority Assets to be owned by the Company or any Restricted Subsidiary and used in a Permitted Business, to the extent they are concurrently with their acquisition added to the First-Priority Collateral securing the Securities, or (C) Capital Stock in one or more Persons engaged in a Permitted Business that are or thereby become Wholly Owned Subsidiaries of the Company and (iii) to the extent Capital Stock of a Person is received by the Company and its Restricted Subsidiaries pursuant to clause (ii)(C) above, assets of such Person that qualify as First-Priority Assets with a fair market value that is equal to or greater than (A) 75% of the fair market value of the First-Priority Collateral that is the subject of such Asset Disposition less (B) the fair market value of any consideration received by the Company and its Restricted Subsidiaries pursuant to clause (ii)(A) or (B) above are concurrently with the acquisition added to the First-Priority Collateral securing the Securities; and (iv) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be):
(aA) first, to the extent the Company or such Restricted Subsidiary elects, to reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary or the application by the Company of the Net Available Cash received by a Restricted Subsidiary of the Company), in each case within 365 days (or, in the case of Foreign Subsidiary Asset Dispositions, 545 days) from the later of such Asset Disposition or the receipt of such Net Available Cash, PROVIDED that such Additional Assets constitute (x) First-Priority Assets that are concurrently with their acquisition added to the First-Priority Collateral securing the Securities or (y) Capital Stock of a Wholly Owned Subsidiary with assets that qualify as First-Priority Assets to the extent that such First Priority Assets, together with any First-Priority Assets described in clause (x), have a fair market value that is equal to or greater than the Net Available Cash applied pursuant to this clause (A) and such First-Priority Assets are concurrently with the acquisition added to the First-Priority Collateral securing the Securities and PROVIDED FURTHER that pending the final application of any such Net Available Cash, it must be deposited in a Notes Collateral Account and pledged as additional First-Priority Collateral;
(B) second, within 365 days from the later of such Asset Disposition or the receipt of such Net Available Cash (or, in the case of Foreign Subsidiary Asset Dispositions, 545 days), to the extent of the balance of such Net Available Cash after such application in accordance with clause (A), to make an Offer (as defined below) to purchase First-Priority Obligations pursuant to and subject to the conditions set forth in Section 4.06(c); and
(C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) (other than the second proviso thereto) and (B), for any general corporate purpose not restricted by the terms of this Indenture.
(b) The Company will not, and will not permit any Restricted Subsidiary to, make any Asset Disposition (other than an Asset Disposition of First-Priority Collateral) unless:
(i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value of the Capital Stock and assets subject to such Asset Disposition, (ii) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of (A) cash or Temporary Cash Investments, (B) properties and assets to be owned by the Company or any Restricted Subsidiary and used in a Permitted Business or (C) Capital Stock in one or more Persons engaged in a Permitted Business that are or thereby become Restricted Subsidiaries of the Company, and (iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be):
(A) first, (i) to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase any Credit Agreement Obligations or any Indebtedness Incurred by a Subsidiary of the Company that is not a Note Guarantor, or (ii) to the extent the Company or such Restricted Subsidiary elects, to reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary or the application by the Company of the Net Available Cash received by a Restricted Subsidiary of the Company), in each case within 365 days (or, in the case of Foreign Subsidiary Asset Dispositions, 545 days) from the later of such Asset Disposition or the receipt of such Net Available Cash, PROVIDED that pending the final application of any such Net Available Cash, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture;
(B) second, within 365 days from the later of such Asset Disposition or the receipt of such Net Available Cash (or, in the case of Foreign Subsidiary Asset Dispositions, 545 days), to the extent of the balance of such Net Available Cash after such application in accordance with clause (A), to make an Offer (as defined below) to purchase Securities pursuant to and subject to the conditions set forth in Section 4.06(c); PROVIDED, HOWEVER, that if the Company elects (or is required by the terms of any other Senior Indebtedness) such Offer may be made ratably to purchase the Securities and such other Senior Indebtedness of the Company; and
(C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) (other than the proviso thereof) and (B), for any general corporate purpose not restricted by the terms of this Indenture; PROVIDED, HOWEVER, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (B) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 4.06, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash from Asset Dispositions that are not Asset Dispositions of First-Priority Collateral in accordance with this Section 4.06 except to the extent that the aggregate Net Available Cash from all such Asset Dispositions which since the Original Issue Date that is not applied in accordance with this Section 4.06(a) 4.06 exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtednessmillion since the Original Issue Date. For the purposes of this Section 4.06(a)4.06, the following are deemed to be cash or cash equivalentscash: (1A) the assumption of Indebtedness any liabilities of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness liabilities in connection with such Asset Disposition; PROVIDED that, with respect to any Asset Disposition of First-Priority Collateral, such liabilities constituted Trade Payables or First-Priority Obligations and (2B) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash. For the purposes of this Section 4.06, any sale by the Company or a Restricted Subsidiary of the Capital Stock of a Note Guarantor that owns assets constituting First-Priority Collateral or Second-Priority Collateral shall be deemed to be a sale of such First-Priority Collateral or Second-Priority Collateral (or, in the event of a Note Guarantor that owns assets that include both First-Priority Collateral and Second-Priority Collateral, a separate sale of such First-Priority Collateral and a separate sale of such Second-Priority Collateral). In the event of any such sale (or a sale of assets that includes both First-Priority Collateral and Second-Priority Collateral), the proceeds received by the Company and the Restricted Subsidiaries in respect of such sale shall be allocated to the First-Priority Collateral and the Second-Priority Collateral in accordance with their respective fair market values, which shall be determined by Board of Directors or an independent third party as provided by the terms of the Intercreditor Agreement.
(bc) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the CompanyIndebtedness) pursuant to Section 4.06(a)(3)(C4.06(a)(iv)(B) or 4.06(b)(iii)(B), the Company shall be required to purchase Securities (and other Senior Indebtedness) tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the CompanyIndebtedness) (the "Offer") at a purchase price of (i) in the case of Non-Consenting Securities, 100% of their Accreted Value or principal amount plus accrued and unpaid interest, including Additional Interest, if any, to the date of purchase (or, subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date) or (ii) in the event such case of all other Senior Subordinated Indebtedness of the Company was issued with significant original issue discountSecurities, 100% of the accreted value thereof), without premium, sum of their principal amount plus accrued but and unpaid interest (orinterest, in respect of such other Senior Subordinated Indebtedness, such lesser priceincluding Additional Interest, if any, as may be provided for by to the terms date of such Senior Subordinated Indebtedness purchase (subject to the right of Holders of record on the Company) relevant record date to receive interest due on the relevant interest payment date), in each case, in accordance with the procedures (including prorating proration in the event of over-subscriptionoversubscription) set forth in Section 4.06(c4.06(d). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the CompanyIndebtedness) tendered pursuant to the Offer exceeds is less than the Net Available Cash allotted to their purchasethe purchase of the Securities (and other Senior Indebtedness), the Company shall select apply the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in remaining Net Available Cash for any general corporate purpose not restricted by the case terms of the Securities will be denominations of $1,000 principal amount or multiples thereofthis Indenture. The Company shall not be required to make an Offer to purchase for Securities (and other Senior Subordinated Indebtedness of the CompanyIndebtedness) pursuant to this Section 4.06 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 4.06(a)(iv)(A) or 4.06(b)(iii)(A)) is less than $10.0 million for any particular Asset Disposition since the Original Issue Date (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon completion of the Offer, the amount of Net Available Cash shall be reduced to zero.
(1d) (i) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall be obligated to deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating proration as hereinafter described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will shall include (A1) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B2) a description of material developments in the Company's business subsequent to the date of the latest of such Reportsreports, and (C3) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained address referred to in clause (3d)(iii).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Indenture (Uniplast Industries Co)
Limitation on Sales of Assets and Subsidiary Stock. (a) 5.11.1 The Company Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1i) the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; Disposition and (2ii) at least 8075% of the consideration thereof received by the Company Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or cash equivalents. In the event and to the extent that the Net Available Cash received by the Issuer and its Restricted Subsidiaries from one or more Asset Dispositions occurring on or after May 17, 1999 in any period of 12 consecutive calendar months exceeds 10% of Adjusted Consolidated Net Tangible Assets (determined as of the date closest to the commencement of such 12-month period for which a consolidated balance sheet has been filed with the SEC or provided to the Holder pursuant to Clause 5.6.2), then the Issuer shall or shall cause the relevant Restricted Subsidiary:
(A) first, to the extent the Issuer elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Issuer or Indebtedness (other than any Disqualified Stock) of a Restricted Subsidiary (in each case other than Indebtedness owed to the Issuer or an Affiliate of the Issuer) within 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash;
(B) second, to the extent of the balance of such Net Available Cash after application, if any, in accordance with clause (A), to the extent the Issuer elects, to acquire Additional Assets within 360 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and
(C) third, to the extent of the balance of such Net Available Cash after application, if any, in accordance with clauses (A) and (B) (the “Offer Excess Proceeds”), and subject to clause 5.11.2 below, to make an offer to the holders of the Notes (and to holders of other Senior Indebtedness designated by the Issuer) to purchase Notes (and such other Senior Indebtedness) pursuant to and subject to the conditions set forth in clause 5.11.2 below; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, the Issuer or such Restricted Subsidiary is shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in 57
(a) except an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this paragraph, the Issuer and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this paragraph to the extent that the aggregate Net Available Cash from all Asset Dispositions which is are not so applied in accordance with this Section 4.06(a) exceeds $10.0 millionwould be US$10 million or less. Pending application of Net Available Cash pursuant to this Section 4.06(a)covenant, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtednessPermitted Investments. For the purposes of this Section 4.06(a)covenant, the following are deemed to be cash or cash equivalents: (1x) the assumption of Indebtedness (other than Subordinated Obligations) of the Company Issuer or any Restricted Subsidiary and the release of the Company Issuer or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2y) securities received by the Company Issuer or any Restricted Subsidiary from the transferee that are promptly converted by the Company Issuer or such Restricted Subsidiary into cash.
(b) 5.11.2 In the event of an Asset Disposition that requires an offer to purchase the purchase of Securities Notes (and other Senior Subordinated Indebtedness of the CompanyIndebtedness) pursuant to Section 4.06(a)(3)(Cclause 5.11.1(C) above, the Issuer will be required to purchase (an “Asset Sale Offer”), from all Holders of Notes issued under the Company shall Note Purchase Agreement, that aggregate principal amount of Notes as can be purchased by application of such Offer Excess Proceeds at a price in cash equal to 100% of the principal amount thereof plus, in each case, accrued and unpaid interest, if any, to the purchase Securities date. To the extent that the Offer Excess Proceeds are more than the aggregate purchase price for the Notes tendered pursuant to an offer by Asset Sale Offer, the Company Issuer or any Restricted Subsidiary may use such excess for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c)general corporate purposes. If the aggregate purchase price for the Notes validly tendered and not withdrawn by holders thereof exceeds the amount of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to Notes which can be purchased with the Offer exceeds the Net Available Cash allotted to their purchaseExcess Proceeds, the Company shall select the Securities and other Senior Subordinated Indebtedness Notes to be purchased will be selected on a pro rata basis but in round denominations, which in the case basis. Upon completion of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Sale Offer, the Company amount of Offer Excess Proceeds shall deliver be reset to zero. Notice of an Asset Sale Offer shall be given by the Issuer to the Trustee and send, by first-class mail Holder not more than 20 Business Days after the obligation to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the make such Asset Sale Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase pricearises. The notice Asset Sale Offer shall specify a purchase date not less than 30 days nor more than 60 days after remain open from the time of mailing for at least 20 Business Days and until 5:00 p.m., New York City time, on the date fixed for Purchase of such notice (the "Purchase Date") Notes validly tendered and not withdrawn, which date shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not be not later than the date upon which written 30th Business Day following the notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the such Asset Sale Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Note Purchase Agreement (Alestra)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, ) of the shares and other assets subject to such Asset Disposition (in each case, such Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition; );
(2) at least 8075% of the consideration thereof received by the Company or such Restricted Subsidiary is in 57the form of cash or Temporary Cash Investments;
(a3) except if and to the extent that the aggregate Company so elects, the Net Available Cash from all such Asset Dispositions which is not Disposition may be applied in accordance with this Section 4.06(aby the Company (or such Restricted Subsidiary, as the case may be) exceeds $10.0 million. Pending application within 365 days of the receipt of such Net Available Cash Cash:
(A) to prepay, repay or purchase Senior Indebtedness; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this Section 4.06(aclause (A), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in connection with such Asset Disposition and (2) securities received by an amount equal to the Company principal amount so prepaid, repaid or any Restricted Subsidiary from the transferee purchased; provided further that are promptly converted by if the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other shall so reduce any unsecured Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C)Indebtedness, the Company shall purchase will equally and ratably reduce Indebtedness under the Securities tendered pursuant to by making an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") to all Holders to purchase at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, equal to 100% of the accreted value principal amount thereof), without premium, plus and accrued but and unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser priceinterest, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness pro rata principal amount of the Company) Securities, such offer to be conducted in accordance with the procedures set forth below for an Asset Disposition Offer but without any further limitation in amount; or
(including prorating B) to reduce Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (B), such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or otherwise retired; in each case of (A) and (B) other than Indebtedness owed to the Company or an Affiliate of the Company; or
(C) to acquire Additional Assets within 365 days of the receipt of such Net Available Cash; provided that, in the event case of over-subscriptionthis clause (C), a binding commitment shall be treated as a permitted application of the Net Available Cash from the date of such commitment so long as the Company or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Available Cash will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and if any Acceptable Commitment is later cancelled or terminated for any reason before such Net Available Cash is applied, then such Net Available Cash shall constitute Excess Proceeds; or
(D) a combination of the foregoing; and
(4) Any Net Available Cash from the Asset Dispositions covered by this Section 4.06(a) that is not invested or applied, or committed to be invested or applied, as provided in Section 4.06(a)(3) will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $50,000,000, within 30 days thereof, the Company shall make an offer to all Holders (each, an “Asset Disposition Offer”), and, if required by the terms of any other Senior Indebtedness, to the holders of such other Senior Indebtedness, to purchase the maximum aggregate principal amount of the Securities and any such other Senior Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount of the Securities and such other Senior Indebtedness, in each case, and accrued and unpaid interest, if any, to, but not including, the date of purchase, subject to, without duplication, the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date, in accordance with the procedures set forth in Section 4.06(c)this Indenture or the agreements governing such other Senior Indebtedness, as applicable, and, with respect to the Securities, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. The Company will commence an Asset Disposition Offer with respect to Excess Proceeds within 30 days after the date that Excess Proceeds exceed $50,000,000 by providing the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. The Company may satisfy the foregoing obligation with respect to such Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to such Net Available Cash prior to the expiration of the Application Period. To the extent that the aggregate amount of Securities and such other Senior Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate purchase price principal amount of Securities (and any or other Senior Subordinated Indebtedness tendered in any Asset Disposition Offer by Holders and holders or lenders of the Company) tendered pursuant to the Offer other Senior Indebtedness exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company shall select the Securities and such other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in based on the case of the Securities will be denominations of $1,000 principal amount amounts tendered or multiples thereof. The Company shall not be required to make an Offer to purchase be prepaid or redeemed; provided that no Securities (and or other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes selected and purchased in an unauthorized denomination. Upon completion of determining whether such an Offer is required with respect to any Asset Disposition Offer, the Net Available Cash from any subsequent Asset Disposition)amount of Excess Proceeds shall be reset at zero.
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities pursuant to this SectionSection 4.06. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 4.06, the Company shall comply with the applicable securities laws and regulations and shall not be deemed not to have breached its obligations under this Section 4.06 by virtue of its compliance with such securities laws or regulations.
(c) In the event of the transfer of substantially all (but not all) of the assets of the Company and the Restricted Subsidiaries as an entirety to a Person in accordance with this Indenture, the successor shall be deemed to have sold for cash at Fair Market Value the assets of the Company and the Restricted Subsidiaries not so transferred for purposes of this Section 4.06, and shall comply with the provisions of this Section 4.06 with respect to such deemed sale as if it were an Asset Disposition (with such Fair Market Value being deemed to be Net Available Cash for such purpose).
(d) Pending application of Net Available Cash pursuant to this Section 4.06, such Net Available Cash may be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of Section 4.06(a)(2), and for no other purpose, the following are deemed to be Temporary Cash Investments: (1) the assumption or discharge of Senior Indebtedness of the Company or any Subsidiary Guarantor (other than obligations in respect of Disqualified Stock of the Company or Preferred Stock of a Subsidiary Guarantor) or any Indebtedness or Preferred Stock of a Restricted Subsidiary that is not a Subsidiary Guarantor and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition; (2) any securities or other obligations received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days after such Asset Disposition, to the extent of the cash received in that conversion; (3) the Fair Market Value of (i) any assets (other than securities) received by the Company or any Restricted Subsidiary to be used by it in the Related Business, (ii) Capital Stock in a Person that is a Restricted Subsidiary or in a Person engaged in the Related Business that shall become a Restricted Subsidiary immediately upon the acquisition of such Person by the Company or any Restricted Subsidiary or (iii) a combination of (i) and (ii); and (4) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value, taken together with the Fair Market Value of all other Designated Non-cash Consideration received pursuant to this clause (4) that is at that time outstanding, not greater than 7.5% of Consolidated Net Tangible Assets at the time of the receipt of such Designated Non-cash Consideration, with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(e) All references herein to “Net Available Cash” and “Excess Proceeds” shall be deemed to mean cash in an amount equal to the amount of Net Available Cash or Excess Proceeds, as applicable, but not necessarily the actual cash received from the relevant Asset Disposition. The Company and its Subsidiaries shall have no obligation to segregate, trace or otherwise identify Net Available Cash or Excess Proceeds, it being agreed that cash is fungible and that the Company’s obligations under this Section 4.06 may be satisfied by the application of funds from other sources.
Appears in 1 contract
Samples: Indenture (U.S. Concrete, Inc.)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall Parent Borrower will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1i) the Company Parent Borrower or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; , as such fair market value (2on the date a legally binding commitment for such Asset Disposition was entered into) may be determined (and shall be determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of the greater of $40,000,00072,000,000 and 2.40% of Consolidated Total Assets) in good faith by the Borrower Representative, whose determination shall be conclusive (including as to the value of all noncash consideration);
(ii) in the case of any Asset Disposition (or series of related Asset Dispositions) having a fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) of the greater of $40,000,00072,000,000 and 2.40% of Consolidated Total Assets or more, at least 8075.0% of the consideration thereof therefor (excluding, in the case of an Asset Disposition (or series of related Asset Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, that are not Indebtedness) received by the Company Parent Borrower or such Restricted Subsidiary is in 57the form of cash; and
(aiii) except to the extent that required by Subsection 8.4(b), an amount equal to 100.0% of the aggregate Net Available Cash from all such Asset Dispositions which Disposition is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For by the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: Parent Borrower (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and Subsidiary, as the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2case may be) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cashas provided therein.
(b) In the event of that on or after the Closing Date the Parent Borrower or any Restricted Subsidiary shall make an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at or a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, Recovery Event in respect of such other Senior Subordinated IndebtednessCollateral shall occur, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reportsSubsection 8.4(a), (B) a description of material developments in the Company's business subsequent an amount equal to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation 100.0% of the Net Available Cash from such Asset Disposition or Recovery Event shall be applied by the Parent Borrower (or any Restricted Subsidiary, as the case may be) as follows:
(i) first, either (x) if the Parent Borrower or such Restricted Subsidiary elects, to the extent such Asset Dispositions pursuant Disposition or Recovery Event is an Asset Disposition or Recovery Event of assets that constitute ABL Priority Collateral, to which purchase, redeem, repay or prepay, to the extent the Parent Borrower or any Restricted Subsidiary is required by the terms thereof, Indebtedness under the Senior ABL Facility or (in the case of letters of credit, bankers’ acceptances or other similar instruments issued thereunder) cash collateralize any such Offer is being made and (C) Indebtedness within the compliance time period required by such Indebtedness after the later of the date of such allocation with Asset Disposition or Recovery Event, as the provisions case may be, and the date of Section 4.06(areceipt of such Net Available Cash or (y) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date extent the Parent Borrower or on such Restricted Subsidiary elects (by delivery of an officer’s certificate by a Responsible Officer to the Purchase Date if funds are immediately available Administrative Agent) to invest in Additional Assets (including by open means of business, an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Offer Amount to be held for payment in accordance with Parent Borrower or another Restricted Subsidiary) within (x) 365 days after the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration later of the date of such Asset Disposition or Recovery Event, as the case may be, and the date of receipt of such Net Available Cash (such period for which the Offer remains open “Reinvestment Period”) or, (y) if such investment in Additional Assets is a project authorized by the "Offer Board of Directors that will take longer than such 365 days to complete and is subject to a binding written commitment entered into during the Reinvestment Period", an additional 180 days after the last day of the Reinvestment Period (it being understood and agreed that if no such investment is made within the Reinvestment Period as extended by this clause (y), the Company Borrowers shall deliver to make the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted prepayments required by the Company. The Trustee shall, Subsection 8.4(b)(ii) on the Purchase Date, mail or deliver payment earlier to occur of (or cause I) the delivery last day of paymentsuch Reinvestment Period as extended by this clause (y) and (II) the date the Borrower Representative elects not to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that pursue such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.investment);
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless Sale unless:
(1i) the Company Issuer or such Restricted Subsidiary receives consideration at the time of such Asset Disposition Sale at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, ) of the shares and assets subject to such Asset Disposition; Sale (2which fair market value shall be determined in good faith by the Board of Directors for any transaction (or series of transactions) involving in excess of $1,000,000) and at least 8075% of the consideration thereof received therefor by the Company Issuer or such Restricted Subsidiary is in 57the form of cash or Cash Equivalents and is received at the time of such sale; and
(aii) except an amount equal to 100% of the extent that the aggregate Net Available Cash from all such Asset Dispositions which Sale is not applied in accordance with this Section 4.06(aby the Issuer (or such Restricted Subsidiary, as the case may be):
(A) exceeds $10.0 million. Pending application first, to the extent the Issuer elects (or is required by the terms of Net Available Cash pursuant to this Section 4.06(athe Senior Credit Facility or other Senior Indebtedness), to prepay or repay outstandings under the Senior Credit Facility or such other Senior Indebtedness; provided, that (1) there is a permanent reduction in the availability of funds under the Senior Credit Facility or such other Senior Indebtedness under a revolving credit facility in an amount equal to such prepayment or repayment and (2) such prepayment or repayment is made within one hundred eighty (180) days from the date of such Asset Sale; and
(B) second, to the extent of the balance of such Net Available Cash shall be invested after application in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(aaccordance with clause (A), to the following are deemed to be cash or cash equivalents: extent the Issuer elects, and within one hundred eighty (180) days from the date of such Asset Sale, to:
(1) make an investment in properties or assets that replace the assumption properties or assets that were the subject of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and Sale or in properties or assets that will be used in a Related Business or
(2) securities received by acquire the Company or any Capital Stock of a Person that becomes a Restricted Subsidiary from as a result of the transferee acquisition of such Capital Stock; provided that are promptly converted by such Person is, at the Company or such time it becomes a Restricted Subsidiary into cashSubsidiary, engaged in a Related Business.
(b) In Any Net Available Cash not applied within one hundred eighty (180) days after the event consummation of an Asset Disposition that requires Sale as provided in clauses (A) or (B) of paragraph (ii) above will be deemed to constitute "Excess Proceeds." When the purchase aggregate amount of Securities Excess Proceeds exceeds $5,000,000, the Issuer will be required to make an offer to all Holders (an "Asset Sale Offer"), to purchase, on a pro rata basis the principal amount of Notes equal in amount to the Excess Proceeds (and other Senior Subordinated Indebtedness of not just the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Companyamount thereof that exceeds $5,000,000) (the "OfferAsset Sale Offer Amount") ), at a purchase price in cash in an amount equal to one hundred percent (100%) of 100% of their the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon to the date of purchase (or, in subject to the event such other Senior Subordinated Indebtedness right of each Holder of record on the Company was issued with significant original issue discount, 100% of relevant Record Date to receive interest due on the accreted value thereofrelevant Interest Payment Date), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). this Indenture, and in accordance with the following standards:
(i) If the aggregate purchase price principal amount of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer Notes surrendered by Holders thereof exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Trustee shall select the Securities and other Senior Subordinated Indebtedness Notes (or portions thereof) to be purchased on a pro rata basis but basis, based on the principal amount of Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes (or portions thereof) in round denominations, which in the case of the Securities will be denominations of $1,000 or integral multiples thereof shall be purchased.
(ii) If the aggregate principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) Notes tendered pursuant to this Section 4.06 if the Net Available Cash available therefor such Asset Sale Offer is less than $10.0 million the Excess Proceeds, the Issuer may use any remaining Excess Proceeds following the completion of the Asset Sale Offer for general corporate purposes (which lesser subject to the other provisions of this Indenture). Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then required to be otherwise applied in accordance with this covenant shall be carried forward reset to zero, subject to any subsequent Asset Sale.
(c) In the event of the transfer of substantially all (but not all) of the property and assets of the Issuer and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 below, the successor corporation shall be deemed to have sold the properties and assets of the Issuer and its Subsidiaries not so transferred for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptlythis covenant, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance comply with the provisions of this Sectioncovenant with respect to such deemed sale as if it were an Asset Sale. If the Offer includes other Senior Subordinated IndebtednessIn addition, the deposit described fair market value of such properties and assets of the Issuer or its Subsidiaries deemed to be sold shall be deemed to be Net Available Cash for purposes of this covenant.
(d) If at any time any non-cash consideration received by the Issuer or any Subsidiary in the preceding sentence may be made connection with any other paying agent pursuant Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to arrangements satisfactory to constitute an Asset Sale hereunder and the Trustee. Upon Net Available Cash thereof shall be applied in accordance with this covenant.
(e) Within thirty (30) calendar days after the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in date the amount of Excess Proceeds exceeds $5,000,000, the purchase price. In Issuer, or the event that Trustee at the aggregate purchase price written request and expense of the Securities delivered Issuer, shall send to each Holder by first-class mail, postage prepaid, a notice prepared by the Company Issuer stating:
(i) that an Asset Sale Offer is being made pursuant to this Section 4.11 and that all Notes that are timely tendered will be accepted for payment, subject to proration if the Trustee amount of Excess Proceeds is less than the aggregate principal amount of all Notes timely tendered pursuant to the Asset Sale Offer;
(ii) the Asset Sale Offer Amount, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which date shall be a Business Day no earlier than thirty (30) calendar days nor later than sixty (60) calendar days subsequent to the date such notice is mailed;
(iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest;
(iv) that, unless the Issuer defaults in the payment of the Asset Sale Offer Amount applicable with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Securities, the Trustee Asset Sale Offer shall deliver the excess cease to the Company immediately accrue interest from and after the expiration of the Offer Period for application in accordance with this Section 4.06.Asset Sale Purchase Date;
(3v) Holders that any Holder electing to have a Security any Notes or portions thereof purchased shall pursuant to the Asset Sale Offer will be required to surrender the Securitysuch Notes, with an appro- priate the form duly entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Company Paying Agent at the address specified in the notice at least three Business Days prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date. Holders ;
(vi) that any Holder shall be entitled to withdraw their such election if the Trustee or the Company receives Paying Agent receives, not later than one the close of business on the fifth Business Day prior to preceding the Asset Sale Purchase Date, a telex, facsimile transmission or letter letter, setting forth the name of the Holder, the principal amount of the Security which was Notes delivered for purchase by the Holder purchase, and a statement that such Holder is withdrawing his such Holder's election to have such Security purchased. Holders Notes or portions thereof purchased pursuant to the Asset Sale Offer;
(vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof,
(viii) if Certificated Notes have been issued hereunder, that any Holder of Certificated Notes whose Securities Certificated Notes are being purchased only in part shall will be issued new Securities Certificated Notes equal in principal amount to the unpurchased portion of the Securities Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof,
(ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and
(x) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.11.
(4f) At On the time Asset Sale Purchase Date, the Company delivers Securities Issuer shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee which are to be the Notes so accepted for purchase, the Company shall also deliver together with an Officers' Certificate stating that such Securities are listing the Notes or portions thereof tendered to be accepted by the Company pursuant to Issuer and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor payment. Subject to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws Section 4.01, the Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder of Notes or regulations conflict with provisions portions thereof so accepted for payment the Asset Sale Offer Amount for such Notes or portions thereof. The Issuer shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Purchase Date. For purposes of this SectionSection 4.11, the Company Trustee shall comply with act as the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulationsPaying Agent.
Appears in 1 contract
Samples: Indenture (Phoenix Md Realty LLC)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1i) the Company or such Restricted Subsidiary receives consideration at the time (including by way of such Asset Disposition relief from, or by any other person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (including as such fair market value to be determined on the value date of all non-cash considerationcontractually agreeing to such Asset Disposition), as determined in good faith by the Board of DirectorsCompany, of the shares and assets subject to such Asset Disposition; ;
(2ii) at least 80(i) 75% for sales of assets that do not constitute Charged Property or (ii) 100% for sales of assets that constitute Charged Property, of the consideration thereof for such Asset Disposition received by the Company or such Restricted Subsidiary is in 57the form of cash or Cash Equivalents; and provided that, with respect to sales of assets that do not constitute Charged Property, the amount of
(aA) except the greater of the principal amount and the carrying value of any liabilities (as reflected on the Company’s most recent consolidated balance sheet or in the footnotes thereto or, if Incurred or increased subsequent to the extent date of such balance sheet, such liabilities that would have been reflected on the aggregate Company’s consolidated balance sheet or in the footnotes thereto if such incurrence or increase had taken place on or prior to the date of such balance sheet, as determined by the Company) of the Company, other than liabilities that are by their terms subordinated to the Facilities, that are (1) assumed by the transferee of any such assets (or a third party in connection with such transfer) pursuant to a written agreement which releases or indemnifies the Company from such liabilities or (2) otherwise cancelled or terminated in connection with the transaction; 212 Project Meria: Senior Facilties Agreement
(B) [Reserved]; and
(C) [Reserved], shall each be deemed to be Cash Equivalents for purposes of this provision and for no other purpose; and
(iii) an amount equal to one hundred (100) per cent. of the Net Available Cash from all such Asset Dispositions which Disposition is applied:
(A) if the assets sold pursuant to such Asset Disposition constitute Charged Property, the Company shall be required to apply (I) one hundred (100) per cent. of the Net Available Cash from such Asset Disposition to promptly repay the Facility B2 if, pro forma for such disposition, the Proportionate Net Leverage Ratio is greater than 3.00:1.00; (II) fifty (50) per cent. of the Net Available Cash from such Asset Disposition to repay the Facility B2 if, pro forma for such disposition, the Proportionate Net Leverage Ratio is equal to or less than 3.00:1.00 but greater than 2.50:1.00 and (III); zero (0) per cent. of the Net Available Cash from such Asset Disposition to repay the Facility B2 if, pro forma for such disposition, the Proportionate Net Leverage Ratio is equal to or less than 2.50:1.00. For the avoidance of doubt, any proceeds of such Asset Disposition not required to be applied pursuant to this sub-paragraph (iii)(A) shall not constitute Excess Proceeds and may be used for any purposes not prohibited under this Agreement; and
(B) if the assets sold pursuant to such Asset Disposition do not constitute Charged Property, an amount equal to one hundred (100) per cent. of the Net Available Cash from such Asset Disposition is applied to prepay, repay or purchase any Debt other than Debt owed to the Company or Subordinated Debt and/or to invest in accordance or commit to invest in Additional Assets,
(1) in connection with this Section 4.06(aany prepayment, repayment or purchase of Debt pursuant to sub-paragraph (B) exceeds $10.0 million. Pending above, the Company will retire such Debt and will cause the related commitment (if any) (other than in the case of any asset-based credit facility) to be reduced in an amount equal to the principal amount so prepaid, repaid or purchased provided further that if the Company elects that any repayment of any revolving credit facility shall constitute an application of Net Available Cash pursuant under this paragraph (B) (the amount so elected to this Section 4.06(abe applied being, the "RCF Election Amount"), such Net Available Cash repayment shall be invested in Temporary Cash Investments or applied to temporarily reduce accompanied by a permanent cancellation of commitments under such revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed facility in an amount at least equal to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and RCF Election Amount;
(2) securities received by the Company or any Restricted Subsidiary from the transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by firstsub-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), paragraph (B) above, a description binding commitment or letter of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not intent entered into not later than the date upon which written notice of an Offer is delivered to the Trustee such 365th day shall be treated as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation a permitted application of the Net Available Cash from the date of such commitment or letter of intent so long as the Company enters into such commitment or letter of intent with the good faith expectation that such Net Available Cash will be applied to satisfy such commitment or letter of intent within the later of such 365th day and one hundred and eighty (180) days of such commitment or letter of intent (an "Acceptable Commitment") or, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Available Cash is applied in connection therewith, the Company enters into another Acceptable Commitment (a "Second Commitment") within one hundred and eighty (180) days of such cancellation or termination; provided further that if any Second Commitment is later cancelled or terminated for any reason before such Net Available Cash is applied, then such Net Available Cash shall constitute Excess Proceeds; and 213 Project Meria: Senior Facilties Agreement
(3) pending the final application of the amount of any such Net Available Cash in accordance with sub-paragraph (B) above or otherwise in accordance with this Section 4, the Company may temporarily reduce Debt or otherwise use such Net Available Cash in any manner not prohibited by this Agreement.
(b) The amount of Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in paragraph (a) above will be deemed to constitute "Excess Proceeds" under this Agreement; provided that, to the extent the Company has elected to prepay, repay or purchase any amount of Debt pursuant to which sub-paragraph (a)(iii)(B) above (other than Obligations under this Agreement) at a price of no less than one hundred (100) per cent. of the principal amount thereof, and has extended such Offer is being made and offer to the Lenders on at least a pro rata basis pursuant to Clause 8.5 (C) Application of prepayments), to the compliance extent the creditors in respect of such allocation with Debt (including the provisions Lenders) elect not to tender their Debt for such prepayment, repayment or purchase, the Company will be deemed to have applied an amount of Section 4.06(a) and Net Available Cash equal to such amount not tendered under this paragraph (b). On , and such dateamount shall not increase the amount of Excess Proceeds.
(c) In the case of sub-paragraph (a)(iii)(B) above, on the 366th day (or such longer period permitted by paragraph (a) above) after the later of an Asset Disposition or the receipt of such Net Available Cash, , the Company shall also irrevocably deposit with will within ten (10) Business Days make an offer (an "Asset Disposition Offer") to each Lender under the Trustee Facility, and if required or with a Paying Agent (orpermitted by the terms of any Debt, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date holders of such Debt, to prepay the outstanding Facility (and only to the extent the Facility is outstanding) held by any such Lender at par, and to purchase the maximum aggregate principal amount (or on accreted value, as applicable) of any such Debt that may be purchased out of the Purchase Date if funds are immediately available by open of business, Excess Proceeds at an offer price in cash in an amount equal to the Offer Amount to be held for payment offer price required by the terms thereof, in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described procedures set forth in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of paymentagreement(s) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that governing such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering HolderDebt.
(d) The Company shall complymay satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition in the case of sub-paragraph (a)(iii)(B) above, by making an Asset Disposition Offer with respect to such Net Available Cash prior to the extent expiration of the relevant three hundred and sixty-five (365) days (or such longer period provided above) with respect to all or part of the Net Available Cash (the "Advance Portion") in advance of being required to do so by this Agreement (an "Advance Offer").
(e) Other than in the case of sub-paragraph (a)(iii)(A) above, Clause 8.5 (Application of prepayments) shall apply to any prepayment of the Facility.
(f) If the aggregate principal amount (or accreted value, if applicable, with the requirements of Section 14(e) of the Exchange Act and any Facility or other securities laws or regulations in connection with the purchase of Securities Debt elected to be repaid pursuant to sub-paragraph (a)(iii)(A) above, as the case may be, surrendered by such holders thereof exceeds the amount offered in the Asset Disposition Offer (or in the case of an Advance Offer, the Advance Portion), the Company shall repay the Facility and such Debt, as the case may be, on a pro rata basis based on the aggregate principal amount (or accreted value, if applicable) of the Facility offered to be repaid or such Debt, as the case may be, tendered with adjustments as necessary so that no Facility to be repaid or Debt, as the case may be, will be repurchased in part in an unauthorized denomination. Upon completion of any such Asset Disposition Offer (or Advance Offer), the amount of Excess Proceeds that resulted in the requirement to make an Asset Disposition Offer shall be reset to zero (0) (regardless of whether there are any remaining Excess Proceeds upon such completion). Upon consummation or expiration of any Asset Disposition Offer, any remaining Net Available Cash shall not be deemed Excess Proceeds and the Company may use such Net Available Cash for any purpose permitted by this SectionAgreement. 214 Project Meria: Senior Facilties Agreement
(g) To the extent that the provisions aggregate amount (or accreted value, if applicable) of any securities laws or regulations conflict with provisions outstanding Facility prepaid and Debt, as the case may be, tendered pursuant to an Asset Disposition Offer is less than the amount offered in the Asset Disposition Offer (or, in the case of this Sectionan Advance Offer, the Advance Portion), the Company shall comply with may use any remaining Excess Proceeds (or in the applicable securities laws and regulations and shall case of an Advance Offer, the Advance Portion) for any purposes not be deemed to have breached its obligations otherwise prohibited under this Section by virtue of its compliance with such securities laws or regulationsAgreement.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Disposition at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; ;
(2) except for any Permitted Asset Swap, at least 8075% of the consideration thereof from such Asset Disposition received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in 57the form of cash or Cash Equivalents; and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company or such Restricted Subsidiary, as the case may be:
(a) to prepay, repay or purchase secured Indebtedness of the Company (other than any Disqualified Stock or Subordinated Obligations) or secured Indebtedness of a Restricted Subsidiary (other than any Disqualified Stock or Guarantor Subordinated Obligations of a Restricted Subsidiary that is a Subsidiary Guarantor) (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; or
(b) to invest in Additional Assets within 365 days from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that with respect to Asset Dispositions of Collateral, such Additional Assets are added to the Collateral with the exception of Net Available Cash not to exceed $15.0 million that is invested in Additional Assets of Non-Guarantor Restricted Subsidiaries; provided that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture; provided, further that in the case of an Asset Disposition of Collateral, any cash will be deposited in accordance with the Intercreditor Agreement. Any Net Available Cash from Asset Dispositions that are not applied or invested as provided in the preceding paragraph will be deemed to constitute “Excess Proceeds.” To the extent that the aggregate amount of Excess Proceeds exceeds $10.0 million on the 366th day after an Asset Disposition, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Securities and to the extent required by the terms of other Pari Passu Secured Indebtedness, to all holders of other Pari Passu Secured Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Pari Passu Secured Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”), to purchase the maximum principal amount of Securities and any such Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Securities and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Notes, as applicable, and in compliance with the Intercreditor Agreement in each case in integral multiples of $1,000. To the extent that the aggregate amount of Securities and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Securities surrendered by Holders thereof and other Pari Passu Notes surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select the Securities and Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Securities and Pari Passu Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the aggregate Net Available Cash from all “Asset Dispositions which is not applied Disposition Offer Period”). The Company will mail a notice of an Asset Disposition Offer first class, postage prepaid, to the record holders shown on the register of Holders within 20 days following the 366th day referred to in accordance with the second paragraph of this Section 4.06(a) exceeds $10.0 million3.5 with a copy to the Trustee, offering to purchase the Securities and Pari Passu Notes as described above. Pending application Each notice of Net Available Cash an Asset Disposition Offer shall state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date the notice is mailed, subject to applicable law (the “Asset Disposition Purchase Date”). No later than five Business Days after the termination of the Asset Disposition Offer Period, the Company will purchase the principal amount of Securities and Pari Passu Notes required to be purchased pursuant to this Section 4.06(a)3.5 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Securities and Pari Passu Notes validly tendered in response to the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the Person in whose name a Security is registered at the close of business on such Net Available Cash shall record date, and no additional interest will be invested payable to Holders who tender Securities pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Securities and Pari Passu Notes or portions of Securities and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Securities and Pari Passu Notes so validly tendered and not properly withdrawn, in Temporary Cash Investments each case in integral multiples of $1,000. The Company will deliver to the Trustee an Officers’ Certificate stating that such Securities or applied portions thereof were accepted for payment by the Company in accordance with the terms of this Section 3.5 and, in addition, the Company will deliver all certificates and securities required, if any, by the agreements governing the Pari Passu Notes. The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after the Asset Disposition Purchase Date) mail or deliver to temporarily reduce revolving credit indebtednesseach tendering Holder of Securities or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Securities or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Security, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Security to such Holder, in a principal amount equal to any unpurchased portion of the Security surrendered; provided that each such new Security will be in a principal amount of $1,000 or an integral multiple of $1,000. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Security not so accepted will be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date. For the purposes of clause (2) of this Section 4.06(a)3.5, the following are will be deemed to be cash or cash equivalents: cash:
(1) any liabilities as shown on the assumption of Indebtedness most recent consolidated balance sheet of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the release Securities) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and further liability; and
(2) securities any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from the such transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In , to the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness extent of the Company) pursuant to Section 4.06(a)(3)(C)cash received in that conversion, with 90 days following the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect closing of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereofAsset Disposition. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities pursuant to this SectionIndenture. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 3.5, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulationsany conflict.
Appears in 1 contract
Samples: Indenture (Libbey Inc)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless Sale unless:
(1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition Sale at least equal to the fair market value Fair Market Value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset DispositionSale; and
(2) at least 8075% of the consideration thereof received by the Company or such Restricted Subsidiary therefor is in 57the form of:
(aA) except to the extent that the aggregate Net Available cash;
(B) Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(aEquivalents;
(C) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on (other than liabilities that are by their terms subordinated to the Notes) by the transferee of any such Indebtedness in connection with such Asset Disposition and assets;
(2D) securities any notes or other obligations received by the Company or any such Restricted Subsidiary from the such transferee that are promptly converted by the Company or such Restricted Subsidiary into cashcash within 90 days of the receipt thereof (to the extent of the cash received);
(E) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggre- gate fair market value, when taken together with all other Designated Noncash Consideration received pursuant to this clause (E) that is then outstanding and all Investments made pursuant to Section 4.07(b)(5) that are then outstanding, not to exceed 5% of the Total Assets of the Company at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value);
(F) Telecommunications Assets and Capital Stock in any Person primarily engaged in the Telecommunications Business; or
(G) any combination of the foregoing.
(b) In Within 365 days after the event receipt of any Net Available Cash from an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C)Sale, the Company shall purchase Securities tendered pursuant or such Restricted Subsidiary, as the case may be, may apply such Net Available Cash at its option:
(1) to an offer repay or retire
(A) secured Indebtedness Incurred by the Company, including Indebtedness under Credit Agreements, or
(B) Indebtedness Incurred by any Restricted Subsidiary (in each case other than any Indebtedness owed to the Company for the Securities or any Restricted Subsidiary); or
(and such other Senior Subordinated Indebtedness of the Company2) (the "Offer") at a purchase price of 100% of their principal amount (or, to acquire Telecommunications Assets or Capital Stock in any Person primarily engaged in the event Telecommunications Business or to make a capital expenditure or to design, improve or expand the Network. Pending the final application of any such other Senior Subordinated Indebtedness of Net Available Cash, the Company was issued with significant original issue discountor such Restricted Subsidiary may temporarily reduce revolving credit borrowings, 100% of if any, or otherwise invest such Net Available Cash in Cash Equivalents.
(c) Any Net Available Cash from Asset Sales that is not applied or invested as provided in paragraph (b) above on or prior to the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of 366th day after an Asset Sale or such other Senior Subordinated Indebtedness, such lesser priceearlier date, if any, as the Board of Directors or the board of directors of such Restricted Subsidiary determines not to apply the Net Available Cash relating to such Asset Sale as set forth in paragraph (b) above will constitute "EXCESS PROCEEDS." When the aggregate amount of Excess Proceeds exceeds $5.0 million (each, a "NET PROCEEDS OFFER TRIGGER DATE"), the Company will make an offer to purchase (the "NET PROCEEDS OFFER") on a date (the "NET PROCEEDS OFFER PAYMENT DATE") not less than 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, to all Holders of Notes and all holders of other Indebtedness that is PARI PASSU with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other PARI PASSU Indebtedness that may be provided for purchased out of Excess Proceeds. The offer price in any such offer to purchase will be equal to 100% of the principal amount plus accrued and unpaid interest, if any, thereon to the date of purchase and will be payable in cash. If at any time any non-cash consideration (including any Designated Noncash Consideration) received by the terms of such Senior Subordinated Indebtedness Company or any Restricted Subsidiary of the Company) , as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10.
(d) Notice of each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 30 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c)3.09 hereof. If any Excess Proceeds remain after consummation of such an offer to purchase, the Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate purchase price principal amount of Securities (and any other Senior Subordinated Indebtedness of the Company) Notes tendered pursuant to the a Net Proceeds Offer exceeds the Net Available Cash allotted amount of Excess Proceeds allocable to their purchasethe Notes, the Company Trustee shall select the Securities and other Senior Subordinated Indebtedness Notes to be purchased on a pro rata basis but in round denominationsPRO RATA basis. Upon completion of any such Net Proceeds Offer, which in the case Amount of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the Net Available Cash available therefor is less than $10.0 million (which lesser amount Excess Proceeds shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition)reset at zero.
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(de) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or and regulations in connection with the purchase repurchase of Securities Notes pursuant to this SectionSection 4.10. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 4.10, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.10 by virtue of its compliance with such securities laws or regulationsthereof.
Appears in 1 contract
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company Borrower shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless: (1i) the Company Borrower or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value Fair Market Value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; (2ii) at least 8085% of the consideration thereof received by the Company Borrower or such Restricted Subsidiary is in 57
the form of cash, Cash Equivalents and/or Exchanged Properties; and (aiii) except an amount equal to 100% of the extent that the aggregate Net Available Cash from all such Asset Dispositions which Disposition is not applied by the Borrower (or such Restricted Subsidiary, as the case may be): (A) first, to the extent the Borrower or any Restricted Subsidiary is required by the terms of any Senior Indebtedness, to prepay, repay or purchase such Senior Indebtedness; and (B) second, to prepay or redeem the Loans and Exchange Notes at par plus accrued and unpaid interest, if any, thereon in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application 2.5(d); provided, however, that, in connection with any prepayment, repayment or purchase of Net Available Cash Indebtedness pursuant to this Section 4.06(aclause (iii)(A), the Borrower or such Net Available Cash Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be invested permanently reduced in Temporary Cash Investments an amount equal to the principal amount so prepaid, repaid or applied to temporarily reduce revolving credit indebtedness. purchased.
(b) For the purposes of this Section 4.06(a)covenant, securities received by the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company Borrower or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (2) securities received by the Company or any Restricted Subsidiary Borrower from the transferee that are promptly converted by the Company Borrower or such Restricted Subsidiary into cash will be deemed to be cash.
(b) In . Notwithstanding the event of an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C)foregoing provisions, the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (Borrower and such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness of the Company) in accordance with the procedures (including prorating in the event of over-subscription) set forth in Section 4.06(c). If the aggregate purchase price of Securities (and any other Senior Subordinated Indebtedness of the Company) tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall select the Securities and other Senior Subordinated Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Securities will be denominations of $1,000 principal amount or multiples thereof. The Company its Restricted Subsidiaries shall not be required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if the apply any Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required in accordance herewith if the Borrower has delivered a Reinvestment Notice with respect to the such Net Available Cash from any subsequent Asset Disposition).
(1) PromptlyCash, and in any event within 10 days after the Company becomes obligated to make an Offerprovided that, the Company shall deliver to the Trustee and send, by first-class mail to on each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Reinvestment Payment Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Reinvestment Prepayment Amount with respect to the relevant Asset Disposition shall be held for payment applied toward the prepayment of the Loans and the Exchange Notes at par plus accrued and unpaid interest, if any, thereon, in accordance with the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"Section 2.5(d), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be required to surrender the Security, with an appro- priate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.
Appears in 1 contract
Samples: Senior Subordinated Credit Agreement (Brown Tom Inc /De)
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, consummate make any Asset Disposition unless unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at (both cash and non cash) equal to not less than the time Fair Market Value (such Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, Disposition) of the shares and assets subject to such Asset Disposition; ;
(2) at least 8075% of the consideration thereof from such Asset Disposition received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in 57the form of cash or Cash Equivalents or Replacement Assets. For purposes of this clause (2), each of the following shall be deemed to be cash:
(a) except to any liabilities (as shown on the extent that face of the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10.0 million. Pending application of Net Available Cash pursuant to this Section 4.06(aCompany’s or such Restricted Subsidiary’s then most recent balance sheet), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. For the purposes of this Section 4.06(a), the following are deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the Company or any Restricted Subsidiary (other than contingent liabilities and Subordinated Obligations) that are assumed by the release transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and further liability; and
(2b) securities any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from the such transferee that are promptly converted by the Company or such Restricted Subsidiary into cash.cash (to the extent of the cash received in that conversion) within 180 days of the closing of such Asset Disposition; and
(c) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair Market Value (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $100.0 million (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received without giving effect to subsequent changes in value); and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition:
(a) first, is applied by the Company or such Restricted Subsidiary, as the case may be,
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Bank Indebtedness) to prepay, repay or purchase such Bank Indebtedness of the Company or of a Restricted Subsidiary within 365 days from the date of such Asset Disposition (such period, the “Application Period”), unless to the extent such Net Available Cash is otherwise used in accordance with clause (ii); provided, however, that, in connection with any prepayment, repayment or purchase of any such Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased, or
(ii) to the extent the Company or any Restricted Subsidiary, as the case may be, elects, to invest in Replacement Assets within the applicable Application Period; and
(b) In second, to the event extent of the balance of the Net Available Cash after application in accordance with (a) above (such balance, “Excess Proceeds”), is applied by the Company or such Restricted Subsidiary, as the case may be, toward an offer to purchase Notes as set forth in the next succeeding paragraph; provided, however, that pending the final application of any such Net Available Cash in accordance with clause (a) or clause (b) above, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture. On the 366th day after an Asset Disposition that requires the purchase of Securities (and other Senior Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an offer by the Company for the Securities (and or such other Senior Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness, such lesser priceearlier date, if any, as may the Board of Directors of the Company or such Restricted Subsidiary determines that the Net Available Cash will not be provided for applied in accordance with clause (3)(a) of the first paragraph of this Section 4.15), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes and, to the extent required by the terms of other Senior Indebtedness, to all holders of other Senior Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Senior Subordinated Indebtedness with the proceeds from any Asset Disposition (“Pari Passu Notes”) to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Disposition Offer applies that may be purchased out of the Company) Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein or the agreements governing the Pari Passu Notes, as applicable, in each case in integral multiples of $1,000 in principal amount (including prorating provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the event case of over-subscription) set forth Pari Passu Notes, in Section 4.06(c)such other integral multiples as may be specified in the agreements governing the Pari Passu Notes. To the extent that the aggregate amount of Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate purchase price principal amount of Securities (Notes and any other Senior Subordinated Indebtedness of the Company) Pari Passu Notes validly tendered and not properly withdrawn pursuant to the an Asset Disposition Offer exceeds the Net Available Cash allotted to their purchaseamount of Excess Proceeds, the Company Trustee, in accordance with (in the case of Global Notes) the applicable procedures of the Depository, shall select the Securities Notes and other Senior Subordinated Indebtedness the holders, trustees or similar representatives, as the case may be, of Pari Passu Notes shall select the Pari Passu Notes to be purchased on a pro rata basis but in round denominations, which in on the case basis of the Securities will be denominations of $1,000 aggregate principal amount or multiples thereofof such tendered Notes and Pari Passu Notes. The Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Each Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company shall not be will purchase the principal amount of Notes and Pari Passu Notes required to make an Offer to purchase Securities (and other Senior Subordinated Indebtedness of the Company) be purchased pursuant to this Section 4.06 4.15 (the “Asset Disposition Offer Amount”) or, if the Net Available Cash available therefor is less than $10.0 million (which lesser amount shall be carried forward for purposes of determining whether such an the Asset Disposition Offer is required with respect Amount has been so validly tendered, all Notes and Pari Passu Notes validly tendered in response to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 10 days after Disposition Offer. Upon the Company becomes obligated to make commencement of an Asset Disposition Offer, the Company shall deliver send, by first class mail, a notice to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase priceits registered address. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision (which at a minimum will include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Dispositions otherwise described in the offering materials (or corresponding successor reports), (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports, and (C) if material, appropriate pro forma financial information) and all instructions and materials necessary to enable such Holder to tender Securities Notes pursuant to the Asset Disposition Offer. Any Asset Disposition Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Disposition Offer, together with shall state:
(1) that the information contained in clause (3).Asset Disposition Offer is being made pursuant to this Section 4.15;
(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any other Senior Subordinated Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Disposition Offer Amount to be held for payment in accordance with and the provisions of this Section. If the Offer includes other Senior Subordinated Indebtedness, the deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Asset Disposition Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities delivered by the Company to the Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.;
(3) that any Notes not tendered or accepted for payment shall continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrete or accrue interest after the Asset Disposition Purchase Date;
(5) that Holders electing to have a Security Note purchased pursuant to the Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the SecurityNote, with an appro- priate the form duly entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company Company, a depository, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three Business Days prior to days before the Asset Disposition Purchase Date. ;
(7) that Holders shall be entitled to withdraw their election if the Trustee Company, the Depository or the Company receives Paying Agent, as the case may be, receives, not later than one Business Day the second business day prior to the Asset Disposition Purchase Date, a telex, facsimile transmission or letter notice setting forth the name of the Holder, the principal amount of the Security which was Note the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security Note purchased. ;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased);
(9) that Holders whose Securities are Notes were purchased only in part shall be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities surrendered.Notes surrendered (or transferred by book-entry transfer); and
(410) At all other procedures, if any, determined by the time Company, consistent with this Indenture, that a Holder must follow in order to have its Notes purchased in the Asset Disposition Offer. If the Asset Disposition Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. On or before the Asset Disposition Purchase Date, the Company delivers Securities will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or portions of such Notes and Pari Passu Notes so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Notes so validly tendered and not properly withdrawn, in each case in integral multiples of $1,000 in principal amount (provided that the unpurchased portion of any Note shall not be less than $2,000 in principal amount) or, in the case of Pari Passu Notes, in such other integral multiples as may be specified in the agreements governing such Pari Passu Notes. The Company will deliver to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' ’ Certificate stating that such Securities are to be Notes or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this SectionSection 4.15 and, in addition, the Company will deliver all certificates and notes required, if any, by the agreements governing the Pari Passu Notes. A Security The Company or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after termination of the Asset Disposition Offer Period) mail or deliver to each tendering Holder of Notes or holder or lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the Notes or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Officers’ Certificate from the Company, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Notes. Any Note not so accepted will be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on or promptly following the Asset Disposition Purchase Date. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Article 5, which transaction does not constitute a Change of Control, the successor company shall be deemed to have been accepted sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purchase at purposes of this Section 4.15, and shall comply with the time provisions of this Section 4.15 with respect to such deemed sale as if it were an Asset Disposition. In addition, the Trustee, directly Fair Market Value of such properties and assets of the Company or through an agent, mails or delivers payment therefor its Restricted Subsidiaries deemed to the surrendering Holder.
(d) be sold shall be deemed to be Net Available Cash for purposes of this Section 4.15. The Company shall will comply, to the extent applicable, with the requirements of Section Rule 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase repurchase of Securities Notes pursuant to this SectionSection 4.15. To the extent that the provisions of any securities laws or regulations conflict with provisions of this SectionSection 4.15, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under this Section Indenture by virtue of its compliance with such securities laws or regulationsany conflict.
Appears in 1 contract
Samples: Indenture (Davita Inc)
