Common use of Additional Assets Clause in Contracts

Additional Assets. If at any point prior to the 12-month anniversary of the Closing Date, any assets of the Sellers or their Subsidiaries that are Contributed Property that have not been contributed to the Company pursuant to the Contribution Agreement or transferred to the Buyer pursuant to this Agreement (such assets are herein referred to as the “Additional Assets”), other than the Excluded Assets, are discovered, then the Buyer may deliver notice to SAVVIS, on or before such 12-month anniversary, requesting delivery of such Additional Assets and stating in reasonable detail the grounds for Buyer’s belief that such Additional Assets constitute Contributed Property. If Buyer so notifies SAVVIS, and SAVVIS agrees that the Additional Assets constitute Contributed Property and should be conveyed to Buyer, the Sellers shall sell, convey, transfer, assign and deliver to the Buyer such Additional Assets, free and clear of all Liens other than Permitted Liens, and the Sellers shall execute and deliver to the Buyer any further documents reasonably requested by the Buyer pursuant to Section 2.5 hereof. If SAVVIS objects to the conveyance of such Additional Assets, SAVVIS shall notify Buyer within 10 Business Days after receipt by SAVVIS of such notice from Buyer. If Buyer and SAVVIS are unable, within 10 Business Days after receipt by Buyer of such notice from SAVVIS, to resolve the matter after good faith negotiations, the dispute shall be submitted to an arbitration in New York, New York conducted in accordance with the rules of the American Arbitration Association, by an arbitrator appointed by the American Arbitration Association reasonably acceptable to Buyer and SAVVIS. The cost of any arbitration proceeding hereunder shall be borne equally by Buyer and SAVVIS, and the decision of the arbitrator shall be final and binding. For the avoidance of doubt, the consideration for such Additional Assets that are conveyed shall be deemed to be included in the Purchase Price and no additional cash shall be paid for such Additional Assets by the Buyer.

Additional Assets. If at any point prior material assets (including any real property or improvements thereto or any interest therein) are acquired by any Obligated Party after September 21, 2001 (other than: (i) assets constituting Collateral under the Collateral Documents that become subject to the 12-month anniversary Lien of the Closing DateCollateral Documents upon acquisition thereof, (ii) assets financed with indebtedness permitted by the Revolver Agreement, (iii) assets encumbered by other consensual Liens permitted by the Revolver Agreement, and (iv) any Synthetic Property or any SPV Finance Documents) or if any Lien encumbering any material assets of the Sellers or their Subsidiaries that are Contributed Property that have not been contributed to the Company pursuant to the Contribution Agreement or transferred to the Buyer pursuant to this Agreement (such assets are herein referred to as the “Additional Assets”), other than the Excluded AssetsSynthetic Property) which are not Collateral as of September 21, 2001 are discoveredreleased or otherwise discharged after September 21, then 2001, Borrower will notify the Buyer may deliver notice Collateral Agent thereof, and, if requested by the Collateral Agent or the Required Creditors, Borrower will cause such assets to SAVVIS, on or before such 12-month anniversary, requesting delivery be subjected to a Lien in favor of such Additional Assets the Collateral Agent securing the Obligations and stating in reasonable detail the grounds for Buyer’s belief that such Additional Assets constitute Contributed Property. If Buyer so notifies SAVVISwill take, and SAVVIS agrees that cause the Additional Assets constitute Contributed Property and should applicable other Obligated Parties to take, such actions as shall be conveyed to Buyer, the Sellers shall sell, convey, transfer, assign and deliver to the Buyer such Additional Assets, free and clear of all Liens other than Permitted Liens, and the Sellers shall execute and deliver to the Buyer any further documents necessary or reasonably requested by the Buyer pursuant Collateral Agent to grant and perfect such Liens, including actions described in paragraph (a) of this Section 2.5 hereofbut subject to the exclusions set forth in the Security Agreement, all at the expense of the Obligated Parties. The Borrower acknowledges that the fee and leasehold interests of the Borrower in the real property and related improvements located in Faulkner County, Conway, Arkansas which becamx xxxxxxmbered on or about July 3, 2002 are subject to the provisions of the forgoing sentence and the Collateral Agent or the Required Creditors may require the Borrower to grants Liens therein at any time as long as such property is not then encumbered by a Lien permitted by the Revolver Agreement. If SAVVIS objects the Collateral Agent requests when: (i) an Event of Default under clause (a) or (b) of Article VIII (payment defaults) of the Revolver Agreement exists or (ii) an Event of Default arising as a result of the failure to comply with the covenants in Article VII (the financial covenants) of the Revolver Agreement exists which has not been cured or waived within 30 days after the occurrence thereof, the Borrower will, and will cause any other Obligated Party who has any interest in any Synthetic Property or SPV Finance Documents to, grant Liens in favor of the Collateral Agent to secure the Obligations in all the Synthetic Property and SPV Finance Documents which are not encumbered by a Lien permitted by the Revolver Agreement and will take, and cause the applicable other Obligated Parties to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to grant and perfect such Liens, including actions described in paragraph (a) of this Section but subject to the conveyance of such Additional Assetsexclusions set forth in the Security Agreement, SAVVIS shall notify Buyer within 10 Business Days after receipt by SAVVIS of such notice from Buyer. If Buyer and SAVVIS are unable, within 10 Business Days after receipt by Buyer of such notice from SAVVIS, to resolve all at the matter after good faith negotiations, the dispute shall be submitted to an arbitration in New York, New York conducted in accordance with the rules expense of the American Arbitration Association, by an arbitrator appointed by the American Arbitration Association reasonably acceptable to Buyer and SAVVIS. The cost of any arbitration proceeding hereunder shall be borne equally by Buyer and SAVVIS, and the decision of the arbitrator shall be final and binding. For the avoidance of doubt, the consideration for such Additional Assets that are conveyed shall be deemed to be included in the Purchase Price and no additional cash shall be paid for such Additional Assets by the BuyerObligated Parties.

Additional Assets. If In the event of an Asset Disposition that requires the purchase of Notes (and other First-Priority Stock Secured Debt), the Company will purchase Notes tendered pursuant to an Asset Disposition Offer by the Company for the Notes (and such other First-Priority Stock Secured Debt) at any point prior to a purchase price of 100% of their principal amount (or, in the 12event such other First-month anniversary Priority Stock Secured Debt was issued with significant original issue discount, 100% of the Closing Date, any assets of the Sellers or their Subsidiaries that are Contributed Property that have not been contributed to the Company pursuant to the Contribution Agreement or transferred to the Buyer pursuant to this Agreement (such assets are herein referred to as the “Additional Assets”accreted value thereof), other than the Excluded Assetswithout premium, are discoveredplus accrued but unpaid interest and Special Interest, then the Buyer may deliver notice to SAVVISif any (or, on or before such 12-month anniversary, requesting delivery in respect of such Additional Assets and stating in reasonable detail the grounds other First-Priority Stock Secured Debt, such other price, not to exceed 100%, as may be provided for Buyer’s belief that such Additional Assets constitute Contributed Property. If Buyer so notifies SAVVIS, and SAVVIS agrees that the Additional Assets constitute Contributed Property and should be conveyed to Buyer, the Sellers shall sell, convey, transfer, assign and deliver to the Buyer such Additional Assets, free and clear of all Liens other than Permitted Liens, and the Sellers shall execute and deliver to the Buyer any further documents reasonably requested by the Buyer pursuant to Section 2.5 hereof. If SAVVIS objects to the conveyance terms of such Additional Assetsother First-Priority Stock Secured Debt), SAVVIS shall notify Buyer within 10 Business Days after receipt by SAVVIS of such notice from Buyer. If Buyer and SAVVIS are unable, within 10 Business Days after receipt by Buyer of such notice from SAVVIS, to resolve the matter after good faith negotiations, the dispute shall be submitted to an arbitration in New York, New York conducted in accordance with the rules procedures (including prorating in the event of oversubscription) set forth in Section 3.3 hereof. If there remains a balance of Net Available Cash after purchasing all securities tendered, then such balance may be used in any manner not prohibited by the Indenture. If the aggregate purchase price of the American Arbitration Associationsecurities tendered exceeds the Net Available Cash allotted to their purchase, by an arbitrator appointed by the American Arbitration Association reasonably acceptable Company will select the securities to Buyer and SAVVISbe purchased on a pro rata basis but in round denominations, which in the case of the Notes will be denominations of $2,000 principal amount or any greater integral multiple of $1,000 in excess thereof. The cost of any arbitration proceeding hereunder Company shall not be required to make such an Asset Disposition Offer to purchase Notes (and other First-Priority Stock Secured Debt) pursuant to this Section 4.6 if the Net Available Cash available therefor is less than $100.0 million (which lesser amount shall be borne equally by Buyer and SAVVIScarried forward for purposes of determining whether such an Asset Disposition Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon completion of such an Asset Disposition Offer, and the decision of the arbitrator shall be final and binding. For the avoidance of doubt, the consideration for such Additional Assets that are conveyed shall Net Available Cash will be deemed to be included in the Purchase Price and no additional cash shall be paid for such Additional Assets reduced by the Buyeraggregate amount of such Asset Disposition Offer. The Company will comply, to the extent applicable, with the requirements of Rule 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.6. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.3 hereof or this Section 4.6, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.3 hereof or this Section 4.6 by virtue of such compliance.

Additional Assets. If In the event of an Asset Disposition that requires the purchase of Notes (and other First-Priority Stock Secured Debt), the Company will purchase Notes tendered pursuant to an Asset Disposition Offer by the Company for the Notes (and such other First-Priority Stock Secured Debt) at any point prior to a purchase price of 100% of their principal amount (or, in the 12event such other First-month anniversary Priority Stock Secured Debt was issued with significant original issue discount, 100% of the Closing Date, any assets of the Sellers or their Subsidiaries that are Contributed Property that have not been contributed to the Company pursuant to the Contribution Agreement or transferred to the Buyer pursuant to this Agreement (such assets are herein referred to as the “Additional Assets”accreted value thereof), other than the Excluded Assetswithout premium, are discoveredplus accrued but unpaid interest and Special Interest, then the Buyer may deliver notice to SAVVISif any (or, on or before such 12-month anniversary, requesting delivery in respect of such Additional Assets and stating in reasonable detail the grounds other First-Priority Stock Secured Debt, such other price, not to exceed 100%, as may be provided for Buyer’s belief that such Additional Assets constitute Contributed Property. If Buyer so notifies SAVVIS, and SAVVIS agrees that the Additional Assets constitute Contributed Property and should be conveyed to Buyer, the Sellers shall sell, convey, transfer, assign and deliver to the Buyer such Additional Assets, free and clear of all Liens other than Permitted Liens, and the Sellers shall execute and deliver to the Buyer any further documents reasonably requested by the Buyer pursuant to Section 2.5 hereof. If SAVVIS objects to the conveyance terms of such Additional Assetsother First-Priority Stock Secured Debt), SAVVIS shall notify Buyer within 10 Business Days after receipt by SAVVIS of such notice from Buyer. If Buyer and SAVVIS are unable, within 10 Business Days after receipt by Buyer of such notice from SAVVIS, to resolve the matter after good faith negotiations, the dispute shall be submitted to an arbitration in New York, New York conducted in accordance with the rules procedures (including prorating in the event of oversubscription) set forth in Section 3.3 hereof. If there remains a balance of Net Available Cash after purchasing all securities tendered, then such balance may be used in any manner not prohibited by the Indenture. If the aggregate purchase price of the American Arbitration Associationsecurities tendered exceeds the Net Available Cash allotted to their purchase, by an arbitrator appointed by the American Arbitration Association reasonably acceptable Company will select the securities to Buyer and SAVVISbe purchased on a pro rata basis but in round denominations, which in the case of the Notes will be denominations of $2,000 principal amount or any greater integral multiple of $1,000 in excess thereof. The cost of any arbitration proceeding hereunder Company shall not be required to make such an Asset Disposition Offer to purchase Notes (and other First-Priority Stock Secured Debt) pursuant to this Section 4.6 if the Net Available Cash available therefor is less than $100.0 million (which lesser amount shall be borne equally by Buyer and SAVVIScarried forward for purposes of determining whether such an Asset Disposition Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon completion of such an Asset Disposition Offer, and the decision of the arbitrator shall be final and binding. For the avoidance of doubt, the consideration for such Additional Assets that are conveyed shall Net Available Cash will be deemed to be included in the Purchase Price and no additional cash shall be paid for such Additional Assets reduced by the Buyeraggregate amount of such Asset Disposition Offer. 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 this Section 4.6. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.3 hereof or this Section 4.6, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.3 hereof or this Section 4.6 by virtue of such compliance.