Common use of Excess Cash Offer Clause in Contracts

Excess Cash Offer. In respect of each fiscal year ending after the Issue Date, the Company shall, within 90 days after the end of such fiscal year, make an offer to purchase PIK Toggle Notes (an "Excess Cash Offer") in an aggregate principal amount equal to the lesser of (A) the Required Percentage of Excess Cash for such fiscal year (determined as of the last day of such fiscal year), less the aggregate amount of (i) any redemptions of PIK Toggle Notes during such fiscal year or in respect of such fiscal year pursuant to the terms of this Indenture, (ii) any redemptions of Floating Rate Notes during such fiscal year pursuant to the terms of the Floating Rate Notes Indenture, (iii) any repurchases of PIK Toggle Notes or Floating Rate Notes during such fiscal year pursuant to an Excess Proceeds Offer, (iv) any repurchases of Floating Rate Notes pursuant to Section 10.14 of the Floating Rate Notes Indenture during such fiscal year or in respect of the fourth fiscal quarter of such fiscal year, and (v) any voluntary acquisitions by the Company of PIK Toggle Notes or Floating Rate Notes (whether by tender offer, open market purchases, negotiated transactions or otherwise) during such fiscal year, and (B) the aggregate principal amount of Floating Rate Notes outstanding as of the Redemption Date (the "Excess Cash Amount") An Excess Cash Offer shall be made on a pro rata basis, by lot or in such other manner as the Trustee shall determine for the Outstanding PIK Toggle Notes, at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to the purchase date (subject to the right of holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date). If any Excess Cash remains after compliance with this Section 10.14, and provided that all Holders of PIK Toggle Notes have been given the opportunity to tender their PIK Toggle Notes for purchase in accordance with such Excess Cash Offer, the Company may use that Excess Cash for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of PIK Toggle Notes tendered into an Excess Cash Offer exceeds the Excess Cash Amount, the Trustee will select the PIK Toggle Notes to be purchased on a pro rata basis, by lot or in such other manner as the Trustee shall determine. Within five Business Days after the Company is obligated to make an Excess Cash Offer pursuant to this Section 10.14, the Company shall send a written notice, by first-class mail, to the Holders of the PIK Toggle Notes, with a copy to the Trustee, accompanied by such information regarding the Company and its Restricted Subsidiaries as the Company in good faith believes will enable such Holders to make an informed decision with respect to such Excess Cash Offer. Such notice shall state, among other things, the purchase price and the purchase date which shall be, subject to any contrary requirements of applicable law, a Business Day no earlier than 30 days nor later than 60 days from the date such notice is given. Each notice of an Excess Cash Offer shall be accompanied by a certificate of the chief financial officer of the Company addressed to the Trustee certifying (and demonstrating with reasonable particulars) the calculation and application of the applicable Excess Cash Amount for such fiscal year. The Company shall not be required to make an Excess Cash Offer for any fiscal year unless the Excess Cash Amount for such fiscal year would be equal to or in excess of $7,500,000 (the "Excess Cash Minimum"). If the amount of the Excess Cash Offer for any fiscal year would be less than the Excess Cash Minimum, so long as no Priority Lien Debt is outstanding, such amount will be carried forward and accumulated and counted in the amount of future Excess Cash Offers until the Excess Cash Minimum is met. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent such laws and regulations are applicable in connection with the repurchase of PIK Toggle Notes in connection with an Excess Cash Offer. To the extent that the provisions of any securities laws or regulation conflict with this Section 10.14, the Company shall comply with the applicable securities laws and regulations and shall be deemed not to have breached its obligations under this Section 10.14 by virtue of such compliance.

Excess Cash Offer. In respect of each fiscal year quarter ending after the Issue Date, the Company shall, within 90 15 days after the end of such fiscal yearquarter, make an offer to purchase PIK Toggle Floating Rate Notes (an "Excess Cash Offer") in an aggregate principal amount equal to the lesser of (A) the Required Percentage of Excess Cash for such fiscal year quarter (determined as of the last day of such fiscal yearquarter), less the aggregate amount of (i) any redemptions of PIK Toggle Floating Rate Notes during such fiscal year or in respect of such fiscal year quarter pursuant to the terms of this IndentureSection 4.01, (ii) any redemptions repurchases of Floating Rate Notes during such fiscal year pursuant to the terms of the Floating Rate Notes Indenture, (iii) any repurchases of PIK Toggle Notes or Floating Rate Notes during such fiscal year quarter pursuant to an Excess Proceeds Offer, Offer and (iviii) any repurchases of Floating Rate Notes pursuant to Section 10.14 of the Floating Rate Notes Indenture during such fiscal year or in respect of the fourth fiscal quarter of such fiscal year, and (v) any other voluntary acquisitions by the Company of PIK Toggle Notes or Floating Rate Notes (whether by tender offer, open market purchases, negotiated transactions or otherwise) during such fiscal yearquarter, and (B) the aggregate principal amount of Floating Rate Notes outstanding as of the Redemption Date (the "Excess Cash Amount") An Excess Cash Offer shall be made on a pro rata basis, by lot or in such other manner as the Trustee shall determine for the Outstanding PIK Toggle Floating Rate Notes, at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to the purchase date (subject to the right of holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date). If any Excess Cash remains after compliance with this Section 10.14, and provided that all Holders of PIK Toggle Floating Rate Notes have been given the opportunity to tender their PIK Toggle Floating Rate Notes for purchase in accordance with such Excess Cash Offer, the Company may use that Excess Cash for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of PIK Toggle Floating Rate Notes tendered into an Excess Cash Offer exceeds the Excess Cash Amount, the Trustee will select the PIK Toggle Floating Rate Notes to be purchased on a pro rata basis, by lot or in such other manner as the Trustee shall determine. Within five Business Days after the Company is obligated to make an Excess Cash Offer pursuant to this Section 10.14, the Company shall send a written notice, by first-class mail, to the Holders of the PIK Toggle Floating Rate Notes, with a copy to the Trustee, accompanied by such information regarding the Company and its Restricted Subsidiaries as the Company in good faith believes will enable such Holders to make an informed decision with respect to such Excess Cash Offer. Such notice shall state, among other things, the purchase price and the purchase date which shall be, subject to any contrary requirements of applicable law, a Business Day no earlier than 30 days nor later than 60 days from the date such notice is given. Each notice of an Excess Cash Offer shall be accompanied by a certificate of the chief financial officer of the Company addressed to the Trustee certifying (and demonstrating with reasonable particulars) the calculation and application of the applicable Excess Cash Amount for such fiscal year. The Company shall not be required to make an Excess Cash Offer for any fiscal year quarter unless the Excess Cash Amount for such fiscal year quarter would be equal to or in excess of $7,500,000 (the "Excess Cash Minimum"). If the amount of the Excess Cash Offer for any fiscal year quarter would be less than the Excess Cash Minimum, so long as no Priority Lien Debt is outstanding, such amount will be carried forward and accumulated and counted in the amount of future Excess Cash Offers until the Excess Cash Minimum is met. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent such laws and regulations are applicable in connection with the repurchase of PIK Toggle Floating Rate Notes in connection with an Excess Cash Offer. To the extent that the provisions of any securities laws or regulation conflict with this Section 10.14, the Company shall comply with the applicable securities laws and regulations and shall be deemed not to have breached its obligations under this Section 10.14 by virtue of such compliance.

Excess Cash Offer. In respect of each fiscal year ending after the Issue Date, the Company shall, within 90 days after the end of such fiscal year, make an offer to purchase PIK Toggle Notes (an "“Excess Cash Offer"”) in an aggregate principal amount equal to the lesser of (A) the Required Percentage of Excess Cash for such fiscal year (determined as of the last day of such fiscal year), less the aggregate amount of (i) any redemptions of PIK Toggle Notes during such fiscal year or in respect of such fiscal year pursuant to the terms of this Indenture, (ii) any redemptions of Floating Rate Notes during such fiscal year pursuant to the terms of the Floating Rate Notes Indenture, (iii) any repurchases of PIK Toggle Notes or Floating Rate Notes during such fiscal year pursuant to an Excess Proceeds Offer, (iv) any repurchases of Floating Rate Notes pursuant to Section 10.14 of the Floating Rate Notes Indenture during such fiscal year or in respect of the fourth fiscal quarter of such fiscal year, and (v) any voluntary acquisitions by the Company of PIK Toggle Notes or Floating Rate Notes (whether by tender offer, open market purchases, negotiated transactions or otherwise) during such fiscal year, and (B) the aggregate principal amount of Floating Rate Notes outstanding as of the Redemption Date (the "“Excess Cash Amount"”) An Excess Cash Offer shall be made on a pro rata basis, by lot or in such other manner as the Trustee shall determine basis for the Outstanding PIK Toggle Notes, at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to the purchase date (subject to the right of holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date). If any Excess Cash remains after compliance with this Section 10.14, and provided that all Holders of PIK Toggle Notes have been given the opportunity to tender their PIK Toggle Notes for purchase in accordance with such Excess Cash Offer, the Company may use that Excess Cash for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of PIK Toggle Notes tendered into an Excess Cash Offer exceeds the Excess Cash Amount, the Trustee will select the PIK Toggle Notes to be purchased on a pro rata basis, basis based on the aggregate principal amount of PIK Toggle Notes tendered by lot or in such other manner as the Trustee shall determineHolders thereof. Within five Business Days after the Company is obligated to make an Excess Cash Offer pursuant to this Section 10.14, the Company shall send a written notice, by first-class mail, to the Holders of the PIK Toggle Notes, with a copy to the Trustee, accompanied by such information regarding the Company and its Restricted Subsidiaries as the Company in good faith believes will enable such Holders to make an informed decision with respect to such Excess Cash Offer. Such notice shall state, among other things, the purchase price and the purchase date which shall be, subject to any contrary requirements of applicable law, a Business Day no earlier than 30 days nor later than 60 days from the date such notice is given. Each notice of an Excess Cash Offer shall be accompanied by a certificate of the chief financial officer of the Company addressed to the Trustee certifying (and demonstrating with reasonable particulars) the calculation and application of the applicable Excess Cash Amount for such fiscal year. The Company shall not be required to make an Excess Cash Offer for any fiscal year unless the Excess Cash Amount for such fiscal year would be equal to or in excess of $7,500,000 (the "“Excess Cash Minimum"”). If the amount of the Excess Cash Offer for any fiscal year would be less than the Excess Cash Minimum, so long as no Priority Lien Debt is outstanding, such amount will be carried forward and accumulated and counted in the amount of future Excess Cash Offers until the Excess Cash Minimum is met. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent such laws and regulations are applicable in connection with the repurchase of PIK Toggle Notes in connection with an Excess Cash Offer. To the extent that the provisions of any securities laws or regulation conflict with this Section 10.14, the Company shall comply with the applicable securities laws and regulations and shall be deemed not to have breached its obligations under this Section 10.14 by virtue of such compliance.

Excess Cash Offer. In respect of each fiscal year ending (a) Not later than 30 Business Days after any date on which the Issue DateAccumulated Amount (as defined) exceeds $1.0 million, the Company shall, within 90 days after the end of such fiscal year, will make an irrevocable, unconditional offer to purchase PIK Toggle Notes (an "Excess Cash Offer") in an aggregate principal amount equal to the lesser Holders to purchase the maximum amount of (A) the Required Percentage of Excess Cash for such fiscal year (determined as Notes which could be acquired by application of the last day of such fiscal year), less the aggregate amount of (i) any redemptions of PIK Toggle Notes during such fiscal year or in respect of such fiscal year pursuant to the terms of this Indenture, (ii) any redemptions of Floating Rate Notes during such fiscal year pursuant to the terms of the Floating Rate Notes Indenture, (iii) any repurchases of PIK Toggle Notes or Floating Rate Notes during such fiscal year pursuant to an Excess Proceeds Offer, (iv) any repurchases of Floating Rate Notes pursuant to Section 10.14 of the Floating Rate Notes Indenture during such fiscal year or in respect of the fourth fiscal quarter of such fiscal year, and (v) any voluntary acquisitions by the Company of PIK Toggle Notes or Floating Rate Notes (whether by tender offer, open market purchases, negotiated transactions or otherwise) during such fiscal year, and (B) the aggregate principal amount of Floating Rate Notes outstanding Accumulated Amount as of the Redemption Date described herein (the "Excess Cash Offer Amount") An Excess Cash Offer shall be made on a pro rata basis, by lot or in such other manner as the Trustee shall determine for the Outstanding PIK Toggle Notes), at a purchase price (the "Excess Cash Offer Price") equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to Accreted Value of the purchase date (subject to the right of holders of record Notes on the relevant Record Date to receive interest due on date the relevant Interest Payment Date). If any Excess Cash remains after compliance with this Section 10.14, Notes tendered are purchased and provided that all Holders of PIK Toggle Notes have been given the opportunity to tender their PIK Toggle Notes paid for purchase in accordance with such the Indenture, which date shall be no later than 30 business Days after the first date on which the Excess Cash Offer, Offer is required to be made (the Company may use that "Excess Cash for any purpose not otherwise prohibited by this IndenturePurchase Date"). If the aggregate principal amount Notice of PIK Toggle Notes tendered into an Excess Cash Offer exceeds will be sent at least 20 Business Days prior to the close of business on the third Business Day prior to the Excess Cash Amount, Purchase Date (the Trustee will select the PIK Toggle Notes to be purchased on a pro rata basis, by lot or in such other manner as the Trustee shall determine. Within five Business Days after the Company is obligated to make an Excess Cash Offer pursuant to this Section 10.14, the Company shall send a written notice"Final Put Date"), by first-class mail, by the Company to each Holder at the Holders address on the books of the PIK Toggle NotesRegistrar, with a copy to the Indenture Trustee. The notice to the Holders will contain all information, accompanied instructions, and materials required by such information regarding the Company and its Restricted Subsidiaries as the Company in good faith believes will enable such Holders to make an informed decision with respect applicable law or otherwise material to such Holders' decision to tender Notes pursuant to the Excess Cash Offer. Such notice shall state, among other thingsAn amount equal to the aggregate of all Excess Cash received by the Company is referred to as the "Accumulated Amount." Prior to making any Excess Cash Offer, the purchase price Company shall invest the Accumulated Amount only in cash and the purchase date which shall be, subject to any contrary requirements of applicable law, a Business Day no earlier than 30 days nor later than 60 days from the date such notice is given. Each notice of an Excess Cash Offer shall be accompanied by a certificate of the chief financial officer of the Company addressed to the Trustee certifying (and demonstrating with reasonable particulars) the calculation and application of the applicable Excess Cash Amount for such fiscal yearEquivalents. The Company shall not be required may, at its option, elect to make an Excess Cash Offer for any fiscal year unless the Excess Cash Amount for such fiscal year would be equal to or in excess of $7,500,000 (the "Excess Cash Minimum"). If the amount of the Excess Cash Offer for any fiscal year would be less than the Excess Cash Minimum, so long as no Priority Lien Debt is outstanding, such amount will be carried forward and accumulated and counted in the amount of future Excess Cash Offers until the Excess Cash Minimum is met. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations manner specified herein prior to the extent such laws and regulations are applicable in connection with time that the repurchase of PIK Toggle Notes in connection with an Excess Cash Offer. Accumulated Amount exceeds $1.0 million. (b) To the extent that the provisions of any securities laws or regulation conflict with this Section 10.14applicable and if required by law, the Company shall comply with Section 14 of the applicable Exchange Act and the provisions of Regulation 14E and any other tender offer rules under the Exchange Act and other securities laws laws, rules, and regulations and which may then be applicable to any Excess Cash Offer by the Company to purchase the Notes. The Company shall be deemed not give the Indenture Trustee prompt notice if the Accumulated Amount exceeds $1.0 million. (c) On or before an Excess Cash Purchase Date, the Company shall (a) accept for payment Notes or portions thereof properly tendered pursuant to have breached its obligations under this Section 10.14 by virtue the Excess Cash Offer prior to the close of such compliance.business on the Final Put Date (on a pro rata basis to the maximum extent possible) based on the Accreted Value of the