Excess Cash Flow Repurchase Offer. (a) If the Company has Excess Cash Flow for any fiscal year (commencing with fiscal 2001), the Company shall apply an amount equal to 50% of the Excess Cash Flow in such fiscal year: (1) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase (and permanently reduce the commitments thereunder) Senior Indebtedness with such percentage of Excess Cash Flow; (2) second, to the extent of the balance of such percentage of Excess Cash Flow after application in accordance with clause (1), to make an offer to the holders of the Notes (and to holders of other Senior Subordinated Indebtedness designated by the Company) to purchase Notes (and such other Senior Subordinated Indebtedness) pursuant to and subject to the conditions contained in this Indenture (an "Excess Cash Flow Offer"); and ---------------------- (3) third, to the extent of the balance of such percentage of Excess Cash Flow after application in accordance with clause (1) or (2) above, to any other application or use not prohibited by this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (1) above, the Company 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; and provided, further, that no Excess Cash Flow Offer shall be required to be made if the Leverage Ratio is less than 3.0 to 1.0 on the last day of such fiscal year. Notwithstanding the foregoing, the amount of Excess Cash Flow included in any Excess Cash Flow Offer shall be reduced by the aggregate amount of any optional prepayments of Senior Indebtedness during such fiscal year, but only to the extent that such prepayments by their terms cannot be reborrowed or redrawn and do not occur in connection with a refinancing of all or any portion of such Senior Indebtedness. (b) In the event of an Excess Cash Flow Offer, the Company will be required to purchase Notes tendered pursuant to an offer by the Company for the Notes (and other Senior Subordinated Indebtedness) at a purchase price of 100% of their principal amount (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) in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture. If the aggregate purchase price of Notes (and any other Senior Subordinated Indebtedness) tendered pursuant to such offer is less than the Excess Cash Flow allotted to the purchase thereof, the Company will be required to apply the remaining Excess Cash Flow in accordance with clause (a)(3) above. The Company shall not be required to make an Excess Cash Flow Offer to purchase Notes (and other Senior Subordinated Indebtedness) pursuant to this Section 4.23 if the Excess Cash Flow available therefor is less than $1.0 million (which lesser amount shall be carried forward for purposes of determining whether such an offer is required with respect to the Excess Cash Flow in any subsequent fiscal year). (c) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.23. To the extent that the provisions of any securities laws or regulations conflict with provisions of this covenant, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this clause by virtue thereof.
Appears in 1 contract
Samples: Indenture (Applied Power Inc)
Excess Cash Flow Repurchase Offer. (a) If the Company has Excess Cash Flow for any fiscal year (commencing with the fiscal year ending December 31, 2001), no later than the 120th day following the end of such fiscal year, the Company shall apply an amount equal to 50% of the Excess Cash Flow in for such fiscal year:
: (1) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase (and permanently reduce the commitments thereunder) Senior Indebtedness of the Company with such percentage of Excess Cash Flow;
; (2) second, to the extent of the balance of such percentage of Excess Cash Flow after application in accordance with clause (1), to make an offer to the holders of the Securities and Dollar Notes (and to holders of other Senior Subordinated Indebtedness of the Company or the Issuer designated by the Company) to purchase purchase, on a pro rata basis, Securities and Dollar Notes (and such other Senior Subordinated IndebtednessIndebtedness of the Company or the Issuer) pursuant to and subject to the conditions contained in this Section 4.10 and in Section 4.10 of the Dollar Notes Indenture (an "Excess Cash Flow Offer"); and ----------------------
(3) third, to the extent of the balance of such percentage of Excess Cash Flow after application in accordance with clause (1) or (2) above, to any other application or use not prohibited by this Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (1) above, the Company 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; and provided, further, that no Excess Cash Flow Offer shall be required to be made if the Leverage Ratio is less than 3.0 to 1.0 on the last day of such fiscal year. Notwithstanding the foregoing, the amount of Excess Cash Flow included in any Excess Cash Flow Offer shall be reduced by the aggregate amount of any optional prepayments of Senior Indebtedness during such fiscal year, but only to the extent that such prepayments by their terms cannot be reborrowed or redrawn and do not occur in connection with a refinancing of all or any portion of such Senior Indebtedness.
(b) In the event of an Excess Cash Flow Offer, the Company will be required to purchase Notes tendered pursuant to an offer by the Company for the Notes (and other Senior Subordinated Indebtedness) at a purchase price of 100% of their principal amount (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) in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture. If the aggregate purchase price of Notes (and any other Senior Subordinated Indebtedness) tendered pursuant to such offer is less than the Excess Cash Flow allotted to the purchase thereof, the Company will be required to apply the remaining Excess Cash Flow in accordance with clause (a)(3) above. The Company shall not be required to make an Excess Cash Flow Offer to purchase Notes (and other Senior Subordinated Indebtedness) pursuant to this Section 4.23 if the Excess Cash Flow available therefor is less than $1.0 million (which lesser amount shall be carried forward for purposes of determining whether such an offer is required with respect to the Excess Cash Flow in any subsequent fiscal year).
(c) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.23. To the extent that the provisions of any securities laws or regulations conflict with provisions of this covenant, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this clause by virtue thereof.Flow
Appears in 1 contract
Samples: Indenture (GSV Inc /Fl/)
Excess Cash Flow Repurchase Offer. (a) If the Company has Excess Cash Flow for any fiscal year (commencing with the fiscal year ending December 31, 2001), no later than the 120th day following the end of such fiscal year, the Company shall apply an amount equal to 50% of the Excess Cash Flow in for such fiscal year:
: (1) first, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase (and permanently reduce the commitments thereunder) Senior Indebtedness of the Company with such percentage of Excess Cash Flow;
; (2) second, to the extent of the balance of such percentage of Excess Cash Flow after application in accordance with clause (1), to make an offer to the holders of the Securities and Euro Notes (and to holders of other Senior Subordinated Indebtedness of the Company or FFBV designated by the Company) to purchase purchase, on a pro rata basis, Securities and Euro Notes (and such other Senior Subordinated IndebtednessIndebtedness of the Company or FFBV) pursuant to and subject to the conditions contained in this Section 4.10 and in Section 4.10 of the Euro Notes Indenture (an "Excess Cash Flow Offer"); and ----------------------
(3) third, to the extent of the balance of such percentage of Excess Cash Flow after application in accordance with clause (1) or (2) above, to any other application or use not prohibited by this the Indenture; provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (1) above, the Company 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; and provided, further, that no Excess Cash Flow Offer shall be required to be made if the Company's Leverage Ratio is less than 3.0 to 1.0 on the last day of such fiscal year. Notwithstanding the foregoing, the amount of Excess Cash Flow included in any Excess Cash Flow Offer shall be reduced by the aggregate amount of any optional prepayments of Senior Indebtedness during such fiscal year, but only to the extent that such prepayments by their terms cannot be reborrowed or redrawn and do not occur in connection with a refinancing of all or any portion of such Senior Indebtedness.
(b) In the event of an Excess Cash Flow Offer, the Company will be required to purchase purchase, on a pro rata basis, Securities and Euro Notes tendered pursuant to an offer by the Company for the Securities and Euro Notes (and other Senior Subordinated IndebtednessIndebtedness of the Company and FFBV, as applicable) at a purchase price of 100% of their respective principal amount (or, in the event such other Senior Subordinated Indebtedness 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) in accordance with the procedures (including prorating in the event of oversubscription) set forth in this IndentureSection 4.10(c). If the aggregate purchase price of the Securities and Dollar Notes (and any other Senior Subordinated IndebtednessIndebtedness of the Company or FFBV) tendered pursuant to such offer is less than the Excess Cash Flow allotted to the purchase thereoftheir purchase, the Company will be required entitled to apply the remaining Excess Cash Flow in accordance with clause (a)(3) above. The Company shall not be required to make an Excess Cash Flow Offer to purchase Securities and Euro Notes (and other Senior Subordinated Indebtedness) pursuant to this Section 4.23 4.10(a) if the Excess Cash Flow available therefor is less than $1.0 5.0 million (which lesser amount shall be carried forward for purposes of determining whether such an offer is required with respect to the Excess Cash Flow in any subsequent fiscal year).
(c1) The Promptly, and in any event within 10 days after the Company shall comply, becomes obligated to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.23. To the extent that the provisions of any securities laws or regulations conflict with provisions of this covenantmake an Excess Cash Flow Offer, the Company shall comply deliver to the Trustee and send, by first-class mail to each Holder and Euro Notes Holder, a written notice stating that the Holder and Euro Notes Holder may elect to have his Securities and Euro Notes purchased by the Company either in whole or in part (subject to prorating as described in Section 4.10(b) in the event the Excess Cash Flow Offer is oversubscribed) in integral multiples of $1,000 of principal amount and E1,000 principal amount, respectively, 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 "Excess Cash Flow Purchase Date") and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders and Euro Notes 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 which may be incorporated by reference (or corresponding successor reports), and (B) a description of material developments in the Company's business subsequent to the date of the latest of such Reports) and all instructions and materials necessary to tender Securities and Euro Notes pursuant to the Excess Cash Flow Offer, together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Excess Cash Flow 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 Excess Cash Flow Offer (the "Excess Cash Flow Offer Amount"), including information as to any other Senior 62 70 Subordinated Indebtedness of the Company or FFBV included in the Excess Cash Flow Offer, (B) the percentage of the Excess Cash Flow remaining after application in accordance with Section 4.10(a)(1) with respect to which such Excess Cash Flow Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.10(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 Excess Cash Flow Purchase Date or on the Excess Cash Flow Purchase Date if funds are immediately available by open of business, an amount equal to the Excess Cash Flow Offer Amount to be held for payment in accordance with the provisions of this Section 4.10. If the Excess Cash Flow 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 Excess Cash Flow Offer remains open (the "Excess Cash Flow Offer Period"), the Company shall deliver to the Trustee for cancellation the Securities and Euro Notes 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 and the Euro Notes Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Securities and Euro Notes delivered by the Company to the Trustee is less than the Excess Cash Flow Offer Amount applicable securities laws to the Securities and regulations and Euro Notes, the Trustee shall not be deemed deliver the excess to have breached its obligations under the Company immediately after the expiration of the Excess Cash Flow Offer Period for application by the Company in any manner permitted by this clause by virtue thereofIndenture.
Appears in 1 contract
Samples: Indenture (GSV Inc /Fl/)
Excess Cash Flow Repurchase Offer. (a) If (x) the Company has Excess Cash Flow for any fiscal year (commencing with fiscal 2001)) and (y) the Leverage Ratio of the Company is more than 3.0 to 1.0 on the last day of such fiscal year, no later than the 120th day following the end of such fiscal year, the Company shall apply an amount equal to 50% of the Excess Cash Flow in for such fiscal year:
: (1) first, to the extent ----- the Company elects (or is required by the terms of any Indebtedness), Senior Debt) to prepay, repay, redeem or purchase (and permanently reduce the commitments thereunder) Senior Indebtedness Debt with such percentage of Excess Cash Flow;
; (2) second, to the extent of the balance of ------ such percentage of Excess Cash Flow after application in accordance with clause (1), to make an offer to the holders of the Notes Securities (and to holders of other Senior Subordinated Indebtedness Debt designated by the Company) to purchase Notes Securities (and such other Senior Subordinated IndebtednessDebt) pursuant to and subject to the conditions contained in this Indenture (an "Excess Cash Flow Offer"); and ----------------------
(3) third, to the ---------------------- extent of the balance of such percentage of Excess Cash Flow after application in accordance with clause (1) or (2) above, to any other application or use not prohibited by this Indenture; provided, however, that in connection with any -------- ------- prepayment, repayment or purchase of Indebtedness pursuant to clause (1) above, the Company 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; and provided, further, that no Excess Cash Flow Offer shall be required to be made if the Leverage Ratio is less than 3.0 to 1.0 on the last day of such fiscal year. Notwithstanding the foregoing, the amount of Excess Cash Flow included in any Excess Cash Flow Offer shall be reduced by the aggregate amount of any optional prepayments of Senior Indebtedness Debt during such the fiscal yearyear for which Excess Cash Flow was calculated, but only to the extent that such prepayments by their terms cannot be reborrowed or redrawn and do not occur in connection with a refinancing of all or any portion of such Senior IndebtednessDebt.
(b) In the event of an Excess Cash Flow Offer, the Company will be required to purchase Notes Securities tendered pursuant to an offer by the Company for the Notes Securities (and other Senior Subordinated IndebtednessDebt) at a purchase price of 100% of their respective principal amount (or, in the event such other Senior Subordinated Indebtedness 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, Debt such lesser price, if any, as may be provided for by the terms of such Senior Subordinated IndebtednessDebt) in accordance with the procedures (including prorating in the event of oversubscription) set forth in this IndentureSection 4.20(c). If the aggregate purchase price of Notes the Securities (and any other Senior Subordinated IndebtednessDebt) tendered pursuant to such offer is less than the Excess Cash Flow allotted to the purchase thereof, the Company will be required to apply the remaining Excess Cash Flow in accordance with clause (a)(3) above. The Company shall not be required to make an Excess Cash Flow Offer to purchase Notes Securities (and other Senior Subordinated IndebtednessDebt) pursuant to this Section 4.23 4.20(a) if the Excess Cash Flow available therefor is less than $1.0 5.0 million (which lesser amount shall be carried forward for purposes of determining whether such an offer is required with respect to the Excess Cash Flow in any subsequent fiscal year).
(c) Notice of each Excess Cash Flow Offer pursuant to this Section 4.20 shall be mailed or caused to be mailed, by first class mail, by the Company within 25 days after the Company becomes obligated to make an Excess Cash Flow Offer (the "Excess Cash Flow Offer Trigger Date") to all Holders at their last ----------------------------------- registered addresses, with a copy to the Trustee. An Excess Cash Flow Offer shall remain open for a period of 20 Business Days or such longer period as may be required by law. The notice shall contain all instructions and materials necessary to enable such Holders to tender Securities pursuant to the Excess Cash Flow Offer and shall state the following terms:
(i) that Holders may elect to have their Securities purchased by the Company either in whole or in part (subject to prorationing as hereinafter described in the event the Excess Cash Flow Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price;
(ii) that the Excess Cash Flow Offer is being made pursuant to this Section 4.20 and that all Securities tendered will be accepted for payment; provided, however, that if the principal amount of Securities tendered in -------- ------- the Excess Cash Flow Offer exceeds the aggregate amount of the Excess Cash Flow Offer (the "Excess Cash Flow Offer Amount"), the Company shall select ----------------------------- the Securities to be purchased on a pro rata basis (based on amounts --- ---- tendered);
(iii) the purchase price (including the amount of accrued interest, if any) and the purchase date (the "Excess Cash Flow Payment Date") (which ----------------------------- shall be no earlier than 30 days nor later than 60 days from the Excess Cash Flow Offer Trigger Date, other than as may be required by applicable law);
(iv) that any Security not tendered will continue to accrue interest;
(v) that, unless the Company defaults in making payment therefor, any Security accepted for payment pursuant to the Excess Cash Flow Offer shall cease to accrue interest after the Excess Cash Flow Offer Payment Date;
(vi) that Holders electing to have a Security purchased pursuant to the Excess Cash Flow Offer will be required to surrender the Security, with the form entitled "Option of Holder to Elect Purchase" on the reverse of ---------------------------------- the Security completed, to the Paying Agent at the address specified in the notice prior to the close of business on the Excess Cash Flow Offer Payment Date;
(vii) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the second Business Day prior to the Excess Cash Flow Offer Payment Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Security purchased; and
(viii) that Holders whose Securities are purchased only in part will be issued new Securities in a principal amount at maturity equal to the unpurchased portion of the Securities surrendered. On or before the Excess Cash Flow Offer Payment Date, the Company shall (i) accept for payment Securities or portions thereof tendered pursuant to the Excess Cash Flow Offer, (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 together with an Officers' Certificate stating the Securities or portions thereof being purchased by the Company. The Paying Agent shall promptly mail to the Holders of Securities so accepted payment in an amount equal to the purchase price, plus accrued interest, if any, thereon set forth in the notice of such Excess Cash Flow Offer. Any Security not so accepted shall be promptly mailed by the Company to the Holder thereof. For purposes of this Section 4.20, the Trustee shall act as the Paying Agent. Any amounts remaining after the purchase of Securities pursuant to an Excess Cash Flow Offer shall be returned by the Trustee to the Company. To the extent that the aggregate amount of the Securities tendered pursuant to an Excess Cash Flow Offer is less than the Excess Cash Flow Offer Amount, the Company may use such excess Excess Cash Flow Offer Amount for general corporate purposes or for any other purposes not prohibited by this Indenture. Upon completion of any such Excess Cash Flow Offer, the Excess Cash Flow Offer Amount shall be reset at zero. 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 thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes Securities pursuant to this Section 4.23an Excess Cash Flow Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this covenantSection 4.20, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this clause Section 4.20 by virtue thereof. This covenant and other provisions contained in this Indenture relating to the Company's obligation to make an Excess Cash Flow Offer may be waived or modified with the written consent of the Holders of a majority in principal amount of the Securities.
Appears in 1 contract
Samples: Indenture (RPP Capital Corp)
