Common use of Excess Proceeds Offers Clause in Contracts

Excess Proceeds Offers. The Indenture provides in Section 3.10 thereof that if, as of the first day of any calendar month, the aggregate amount of Sale Excess Proceeds and Loss Excess Proceeds exceeds 10% of consolidated total assets of the Company, and if the aggregate amount of Sale Excess Proceeds and Loss Excess Proceeds in excess of 10% of consolidated total assets of the Company that has not theretofore been subject to an Excess Proceeds Offer (as defined below) (the "Excess Proceeds Offer Amount"), totals at least $10 million, the Lender must, not later than the fifteenth Business Day of such month, make an offer ( an "Excess Proceeds Offer") to purchase from the Holders of the Secured Notes, pursuant to and subject to the conditions contained in the Indenture, and from Holders of the New Senior Notes, pursuant to provisions of the New Senior Note Indenture, Secured Notes at a purchase price equal to 100% of their principal amount, plus any accrued interest (including Additional Amounts and Special Interest, if any) to the date of purchase and New Senior Notes at a purchase price equal to 100% of their principal amount, plus any accrued interest (including Special Interest, if any) to the date of purchase in an aggregate principal amount equal to the Excess Proceeds Offer Amount (an "Excess Proceeds Payment"). If the Lender is ever required pursuant to Section 3.10 of the Indenture to make an Excess Proceeds Offer to the Holders of the Secured Notes to purchase from such Holders their Secured Notes, and to the Holders of Senior Notes to purchase from such Holders their New Senior Notes, the Indenture provides, and the Company agrees, that the Company will prepay the Loan and the Other Loans on a pro rata basis to permit the Lender to purchase any Secured Notes validly tendered pursuant to an Excess Proceeds Offer. All payments on the Loan shall be allocated between the appropriate Tranches of the Loan; and all payments on the Loan and the Other Loans pursuant hereto shall be made directly to the Trustee for deposit into the Issuer Escrow Account.

Excess Proceeds Offers. The Indenture provides in Section 3.10 thereof that if, as of the first day of any calendar month, the aggregate amount of Sale Excess Proceeds and Loss Excess Proceeds exceeds 10% of consolidated total assets of the Company, and if the aggregate amount of Sale Excess Proceeds and Loss Excess Proceeds in excess of 10% of consolidated total assets of the Company that has not theretofore been subject to an Excess Proceeds Offer (as defined below) (the "Excess Proceeds Offer Amount"), totals at least $10 million, the Lender must, not later than the fifteenth Business Day of such month, make an offer ( (an "Excess Proceeds Offer") to purchase from the Holders of the Secured Notes, pursuant to and subject to the conditions contained in the Indenture, and from Holders of the New Senior Notes, pursuant to provisions of the New Senior Note Indenture, Secured Notes at a purchase price equal to 100% of their principal amount, plus any accrued interest (including Additional Amounts and Special Interest, if any) to the date of purchase and New Senior Notes at a purchase price equal to 100% of their principal amount, plus any accrued interest (including Special Interest, if any) to the date of purchase in an aggregate principal amount equal to the Excess Proceeds Offer Amount (an "Excess Proceeds Payment"). If the Lender is ever required pursuant to Section 3.10 of the Indenture to make an Excess Proceeds Offer to the Holders of the Secured Notes to purchase from such Holders their Secured Notes, and to the Holders of Senior Notes to purchase from such Holders their New Senior Notes, the Indenture provides, and the Company agrees, that the Company will prepay the Loan and the Other Loans on a pro rata basis to permit the Lender to purchase any Secured Notes validly tendered pursuant to an Excess Proceeds Offer. All payments on the Loan shall be allocated between the appropriate Tranches of the Loan; and all payments on the Loan and the Other Loans pursuant hereto shall be made directly to the Trustee for deposit into the Issuer Escrow Account.

Excess Proceeds Offers. The Indenture provides in In the event that, pursuant to Section 3.10 thereof that if4.10 hereof, the Company shall be required to commence an Excess Proceeds Offer, as defined therein, it shall follow the procedures specified below. The Excess Proceeds Offer shall remain open for a period of not less than 30 and not more than 60 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the "Offer Period"). No later than five Business Days after the termination of the first day of any calendar monthOffer Period (the "Purchase Date"), the aggregate Company shall purchase the principal amount of Sale Notes required to be purchased pursuant to Sections 4.10 hereof (the "Offer Amount") or, if less than the Offer Amount has been tendered, all Notes tendered in response to the Excess Proceeds and Loss Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. Upon the commencement of an Excess Proceeds exceeds 10% Offer, the Company shall send, by first class mail, a notice to the Trustee and each of consolidated total assets the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Excess Proceeds Offer. The Excess Proceeds Offer shall be made to all Holders. The notice, which shall govern the terms of the Excess Proceeds Offer, shall state: (a) that the Excess Proceeds Offer is being made pursuant to Section 4.10 hereof and the length of time the Excess Proceeds Offer shall remain open; (b) the Offer Amount, the purchase price and the Purchase Date; (c) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (d) that, unless the Company defaults in making such payment, any Note (or portion thereof) accepted for payment pursuant to the Excess Proceeds Offer shall cease to accrete or accrue interest after the Purchase Date; (e) that Holders electing to have a Note purchased pursuant to a Excess Proceeds Offer may elect to have Notes purchased in integral multiples of $1,000 only; (f) that Holders electing to have a Note purchased pursuant to any Excess Proceeds Offer shall be required to surrender the Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date; (g) that Holders shall be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Note purchased; (h) that, if the aggregate amount of Sale Excess Proceeds and Loss Excess Proceeds Notes surrendered by Holders exceeds the Offer Amount, the Trustee shall select the Notes to be purchased pursuant to the terms of Section 3.02 hereof (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in excess denominations of 10% of consolidated total assets $1,000, or integral multiples thereof, shall be purchased); and (i) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Company that has not theretofore been subject to an Excess Proceeds Offer Notes surrendered (as defined below) (or transferred by book-entry transfer). On the "Excess Proceeds Offer Amount"), totals at least $10 millionPurchase Date, the Lender mustCompany shall, not later than the fifteenth Business Day of such month, make an offer ( an "Excess Proceeds Offer") to purchase from the Holders of the Secured Notes, pursuant to and subject to the conditions contained in the Indentureextent lawful, and from Holders of the New Senior Notes, pursuant to provisions of the New Senior Note Indenture, Secured Notes at a purchase price equal to 100% of their principal amount, plus any accrued interest (including Additional Amounts and Special Interest, if any) to the date of purchase and New Senior Notes at a purchase price equal to 100% of their principal amount, plus any accrued interest (including Special Interest, if any) to the date of purchase in an aggregate principal amount equal to the Excess Proceeds Offer Amount (an "Excess Proceeds Payment"). If the Lender is ever required pursuant to Section 3.10 of the Indenture to make an Excess Proceeds Offer to the Holders of the Secured Notes to purchase from such Holders their Secured Notes, and to the Holders of Senior Notes to purchase from such Holders their New Senior Notes, the Indenture provides, and the Company agrees, that the Company will prepay the Loan and the Other Loans accept for payment on a pro rata basis to permit the Lender to purchase any Secured extent necessary, the Offer Amount of Notes validly (or portions thereof) tendered pursuant to an the Excess Proceeds Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and shall 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 3.09. All payments The Company, the Depositary or the Paying Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of Notes tendered by such Holder, as the case may be, and accepted by the Company for purchase, and the Company shall promptly issue a new Note. The Trustee, upon written request from the Company shall authenticate and mail or deliver such new Note to such Holder, in a principal amount at maturity equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the respective Holder thereof. The Company shall publicly announce the results of the Excess Proceeds Offer on the Loan shall be allocated between the appropriate Tranches of the Loan; and all payments on the Loan and the Purchase Date. Other Loans than as specifically provided in this Section 3.09, any purchase pursuant hereto to this Section 3.09 shall be made directly pursuant to the Trustee for deposit into the Issuer Escrow Accountprovisions of Sections 3.01 through 3.06 hereof.

Excess Proceeds Offers. The Indenture provides in Section 3.10 thereof that if(a) If, as of the first day of any calendar month, the aggregate amount of Sale Excess Proceeds and Loss Excess Proceeds exceeds 10% of consolidated total assets of the Company, and if the aggregate amount of Sale Excess Proceeds and Loss Excess Proceeds in excess of 10% of consolidated total assets of the Company that has not theretofore been subject to an a Sale Excess Proceeds Offer (as defined below) (the "Excess Proceeds Offer Amount"), totals at least $10 million, the Lender Company must, not later than the fifteenth Business Day of such month, make an offer ( (a "Sale Excess Proceeds Offer") to purchase from the holders on a pro rata basis an aggregate principal amount of Securities equal to the Sale Excess Proceeds on such date, at a purchase price at least equal to 101% of their principal amount, plus, in each case, accrued interest (if any) to the date of purchase (the "Sale Excess Proceeds Payment"). (b) Unless and until the Termination and Release shall have occurred, if, as of the first day of any calendar month, the aggregate amount of Loss Excess Proceeds not theretofore subject to a Loss Excess Proceeds Offer (as defined below) totals at least $10 million, the Company must, not later than the fifteenth Business Day of such month, make an offer (a "Loss Excess Proceeds Offer," and together with a Sale Excess Proceeds Offer, an "Excess Proceeds Offer") to purchase from the Holders holders on a pro rata basis an aggregate principal amount of the Secured Notes, pursuant to and subject Securities equal to the conditions contained in the IndentureLoss Excess Proceeds on such date, and from Holders of the New Senior Notes, pursuant to provisions of the New Senior Note Indenture, Secured Notes at a purchase price at least equal to 100% of their principal amount, plus any plus, in each case, accrued interest (including Additional Amounts and Special Interest, if any) to the date of purchase and New Senior Notes at a purchase price equal to 100% of their principal amount, plus any accrued interest (including Special Interest, if any) to the date of purchase in an aggregate principal amount equal to the "Loss Excess Proceeds Offer Amount (Payment," and together with a Sale Excess Proceeds Payment, an "Excess Proceeds Payment"). If the Lender is ever required pursuant to Section 3.10 of the Indenture to make . (c) The Company shall commence an Excess Proceeds Offer by mailing a notice to the Holders Trustee and each Holder stating: 58 67 (i) that the Excess Proceeds Offer is being made pursuant to this Section 4.10 and that all Securities validly tendered shall be accepted for payment on a pro rata basis; (ii) the purchase price and the date of purchase (which shall be a Business Day no earlier than 30 days nor later than 60 days from the date such notice is mailed) (the "Excess Proceeds Payment Date"); (iii) that any Security not tendered shall continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Secured Notes to purchase from such Holders their Secured NotesExcess Proceeds Payment, and any Security accepted for payment pursuant to the Excess Proceeds Offer shall cease to accrue interest on and after the Excess Proceeds Payment Date; (v) that Holders electing to have a Security purchased pursuant to the Excess Proceeds Offer shall be required to surrender the Security, together with the form entitled "Option of Senior Notes the Holder to purchase from Elect Purchase" on the reverse side of the Security completed, to the Paying Agent at the address specified in the notice prior to the close of business on the Business Day immediately preceding the Excess Proceeds Payment Date; (vi) that Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the third Business Day immediately preceding the Excess Proceeds Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of such Holders their New Senior NotesHolder, the Indenture providesprincipal amount of Securities delivered for purchase and a statement that such Holder is withdrawing his election to have such Securities purchased; and (vii) that Holders whose Securities are being purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered; 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 the Excess Proceeds Payment Date, and the Company agrees, that the Company will prepay the Loan and the Other Loans shall: (i) accept for payment on a pro rata basis to permit the Lender to purchase any Secured Notes validly Securities or portions thereof tendered pursuant to an the Excess Proceeds Offer. All payments on ; (ii) deposit with the Loan shall be allocated between Paying Agent money sufficient to pay the appropriate Tranches purchase price of the Loanall Securities or portions thereof so accepted; and all payments on the Loan and the Other Loans pursuant hereto shall (iii) deliver, or cause to be made directly delivered, to the Trustee all Securities or portions thereof so accepted together with an Officers' Certificate specifying the Securities or portions thereof accepted for deposit into payment by the Issuer Escrow AccountCompany. The Paying Agent shall promptly mail to the 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 that each Security purchased and each new Security issued shall be in an original 59 68 principal amount of $1,000 or integral multiples thereof. The Company shall publicly announce the results of the Excess Proceeds Offer as soon as practicable after the Excess Proceeds Payment Date. For purposes of this Section 4.10, the Trustee shall act as the Paying Agent. (d) The Company shall comply with Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable, in the event that such Excess Proceeds are received by the Company under this Section 4.10. SECTION