Maintenance of Consolidated Net Worth. The Company is required to furnish to the Trustee an Officers’ Certificate within 55 days after the end of any fiscal quarter (100 days after the end of any fiscal year) notifying the Trustee that the Company’s Consolidated Net Worth has declined below $80.0 million (the “Minimum Required Net Worth”) at the end of any fiscal quarter in which the Company’s Consolidated Net Worth has so declined. If, on the last day of each of any two consecutive fiscal quarters (the last day of the second fiscal quarter being referred to herein as a “Deficiency Date”), the Company’s Consolidated Net Worth is less than the Minimum Required Net Worth, then the Company is required, no later than 65 days after each such Deficiency Date (110 days if such Deficiency Date is the last day of the Company’s fiscal year), to make an offer to all Holders of Notes to purchase (a “Purchase Offer”) 10% of the aggregate principal amount of the Notes theretofore issued under this First Supplemental Indenture (the “Offer Amount”) at a purchase price equal to 100% of the principal amount of the Notes, plus accrued interest to the date of purchase. The Purchase Offer is required to remain open for a period of 20 Business Days following its commencement, except to the extent otherwise permitted by applicable law (as extended, the “Offer Period”) and the Company is required to purchase the Offer Amount of the Notes on a designated date no later than one Business Day after the termination of the Offer Period, or if less than the Offer Amount of Notes shall have been tendered, all Notes then tendered; provided, however, that the Company shall not be obligated to purchase any of such Notes unless Holders of Notes of at least 10% of the Offer Amount shall have tendered and not subsequently withdrawn their Notes for repurchase. If the aggregate principal amount of Notes tendered exceeds the Offer Amount, the Company is required to purchase the Notes tendered to it pro rata among the Notes tendered (with such adjustments as may be appropriate so that only Notes in denominations of $1,000 and integral multiples thereof shall be purchased). The Company shall comply with all applicable federal and state securities laws in connection with each Purchase Offer. In no event shall the failure of the Company’s Consolidated Net Worth to equal or exceed the Minimum Required Net Worth at the end of the fiscal quarter be counted toward the making of more than one Purchase Offer. The Company may reduce the principal amount of Notes to be purchased pursuant to the Purchase Offer by subtracting 100% of the principal amount (excluding premium) of Notes acquired by the Company subsequent to the Deficiency Date through purchase (otherwise than pursuant to this Section 5.09 or Section 5.04 or Section 5.10 hereof), optional redemption or exchange and surrender for cancellation.
Appears in 2 contracts
Samples: First Supplemental Indenture (NVR Inc), First Supplemental Indenture (NVR Inc)
Maintenance of Consolidated Net Worth. The Company is required to furnish to (a) In the Trustee an Officers’ Certificate within 55 days after the end of any fiscal quarter (100 days after the end of any fiscal year) notifying the Trustee event that the Company’s 's Consolidated Net Worth has declined below $80.0 million (the “Minimum Required Net Worth”) at the end of any fiscal quarter in which the Company’s Consolidated Net Worth has so declined. If, on the last day of each of any two consecutive fiscal quarters (the last day of the such second fiscal quarter being referred to herein as a “Deficiency Date”), the Company’s Consolidated Net Worth "TRIGGER DATE") is less than $150.0 million (the Minimum Required Net Worth"MINIMUM NET WORTH"), then the Company is required, no later than 65 days after each such Deficiency Date (110 days if such Deficiency Date is the last day of the Company’s fiscal year), to shall make an offer to all Holders of Notes to purchase (a “Purchase Offer”"NET WORTH OFFER") to acquire on a PRO RATA basis on the date (the "NET WORTH REPURCHASE DATE") that is 45 days following the date of the Net Worth Notice (as defined below), Securities in an aggregate principal amount equal to 10% of the initial aggregate amount of the Securities issued under this Indenture (or if less than 10% of the initial aggregate principal amount of the Notes theretofore Securities issued under this First Supplemental Indenture is then outstanding, all the Securities outstanding at the time) (the “Offer Amount”"NET WORTH OFFER AMOUNT") at a purchase price equal to of 100% of the principal amount of the Notesthereof, plus accrued interest and Additional Interest, if any, to the date of purchase. The Purchase Offer is required to remain open for a period of 20 Business Days following its commencement, except to Net Worth Repurchase Date (the extent otherwise permitted by applicable law (as extended, the “Offer Period”) and the Company is required to purchase the Offer Amount of the Notes on a designated date no later than one Business Day after the termination of the Offer Period, or if less than the Offer Amount of Notes shall have been tendered, all Notes then tendered; provided, however, that the Company shall not be obligated to purchase any of such Notes unless Holders of Notes of at least 10% of the Offer Amount shall have tendered and not subsequently withdrawn their Notes for repurchase. If the aggregate principal amount of Notes tendered exceeds the Offer Amount, the Company is required to purchase the Notes tendered to it pro rata among the Notes tendered (with such adjustments as may be appropriate so that only Notes in denominations of $1,000 and integral multiples thereof shall be purchased"NET WORTH PRICE"). The Company may credit against a Net Worth Offer Amount the principal amount of Securities acquired by the Company prior to the relevant Trigger Date through purchase, optional redemption or exchange. No credit shall comply with all applicable federal and state securities laws be made for any mandatory repurchase, including, without limitation, repurchases pursuant to a Net Worth Offer, a Change of Control or a Net Proceeds Offer (as defined in connection with each Purchase Section 4.15). The Company, however, may not receive credit for a specific repurchased Security in more than one Net Worth Offer. In no event shall the Company's failure of the Company’s to maintain a Consolidated Net Worth to equal or exceed in excess of the Minimum Required Net Worth at the end of the any fiscal quarter be counted toward the making of requirement to make more than one Purchase Net Worth Offer. The Company may reduce shall notify the principal amount Trustee promptly after the occurrence of Notes to be purchased pursuant to the Purchase Offer by subtracting 100% any of the principal amount (excluding premium) of Notes acquired by the Company subsequent to the Deficiency Date through purchase (otherwise than pursuant to events specified in this Section 5.09 or Section 5.04 or Section 5.10 hereof), optional redemption or exchange and surrender for cancellation.Section
Appears in 2 contracts
Samples: Indenture (Schuler Homes Inc), Indenture (Schuler Homes Inc)
Maintenance of Consolidated Net Worth. (a) The Company is required to maintain a Consolidated Net Worth of at least $18 million. If the Company's Consolidated Net Worth is less than $18 million at the end of any fiscal quarter, the Company shall furnish to the Trustee an Officers’ Officer's Certificate within 55 45 days after the end of any such fiscal quarter (100 90 days after the end of any fiscal year) notifying the Trustee that the Company’s 's Consolidated Net Worth has declined below $80.0 million (18 million. If, at any time or from time to time, the “Minimum Required Company's Consolidated Net Worth”) Worth at the end of any fiscal quarter in which the Company’s Consolidated Net Worth has so declined. If, on the last day of each of any such two consecutive fiscal quarters (the last day of the second fiscal quarter being referred to herein as a “"Deficiency Date”), the Company’s Consolidated Net Worth ") is less than the Minimum Required Net Worth$18 million, then the Company is requiredshall, in each such event, no later than 65 50 days after each such Deficiency Date (110 100 days if such Deficiency Date is also the last day end of the Company’s 's fiscal year), mail to make the Trustee and each Holder at such Holder's last address as it appears on the Debenture Register a notice (the "Deficiency Notice") of the occurrence of such deficiency, which shall include an offer by the Company (the"Deficiency Offer") to all Holders of Notes repurchase up to purchase (a “Purchase Offer”) 10% of the aggregate principal amount of Debentures originally issued (or such lesser amount as may be outstanding at the Notes theretofore issued under this First Supplemental Indenture time of the Deficiency Notice) (the “Offer "Deficiency Repurchase Amount”") at a purchase repurchase price equal to 100% of the principal amount of the Notes, Debentures repurchased plus accrued interest but unpaid interest, if any, to the date of purchasepurchase as described below. The Purchase failure to maintain a Consolidated Net Worth of at least $18 million as of the end of any fiscal quarter will not be counted towards the making of more than one Deficiency Offer.
(b) The Deficiency Notice shall state:
(i) that a net worth deficiency has occurred, referencing the applicable paragraph of the Debentures;
(ii) that the Company is offering to repurchase the Deficiency Repurchase Amount;
(iii) the repurchase price;
(iv) the expiration date of the Deficiency Offer, which shall be no earlier than 30 days nor later than 45 days after the date such notice is mailed;
(v) the date such purchase shall be effected, which shall be no later than 20 days after expiration date of the Deficiency Offer (the "Deficiency Payment Date");
(vi) that Debentures not accepted for payment pursuant to the Deficiency Offer shall continue to accrue interest;
(vii) that, unless the Company defaults in payment of the Deficiency Repurchase Amount, all Debentures accepted for payment pursuant to the Deficiency Offer shall cease to accrue interest after the Deficiency Payment Date;
(viii) that if any Debenture is repurchased in part, a new Debenture or Debentures in principal amount equal to the unrepurchased portion will be issued;
(ix) the Conversion Price;
(x) the name and address of the Paying Agent and Conversion Agent;
(xi) that Debentures to be repurchased must be surrendered to the Paying Agent to collect the repurchase price; and
(xii) any other information required by applicable law to be included therein and any other procedures that a Holder must follow to have Debentures repurchased in such Deficiency Offer.
(c) The Deficiency Offer shall remain open until the close of business on the last day of the Deficiency Offer. If the Deficiency Payment Date is on or after an interest payment record date and on or before the related Interest Payment Date, accrued interest through such Interest Payment Date will be paid to each Person in whose name a Debenture repurchased in the Deficiency Offer is required registered at the close of business on such record date, and no additional interest will be payable to remain open for a period of 20 Business Days following its commencementHolders who tender Debentures pursuant to such Deficiency Offer. The Company will comply with all applicable securities laws and regulations in connection with each Deficiency Offer.
(d) On or before each Deficiency Payment Date, except the Company shall, to the extent otherwise permitted by applicable law (as extendedlawful, the “Offer Period”) and the Company is required to purchase the Offer Deficiency Repurchase Amount of the Notes on a designated date no later than one Business Day after the termination of the Offer PeriodDebentures or, or if less than the Offer Deficiency Repurchase Amount of Notes shall have has been tendereddelivered for repurchase, all Notes then tendered; provided, however, that Debentures delivered for repurchase in response to the Company shall not be obligated to purchase any of such Notes unless Holders of Notes of at least 10% of the Offer Amount shall have tendered and not subsequently withdrawn their Notes for repurchaseDeficiency Offer. If the aggregate principal amount of Notes tendered Debentures delivered for repurchase exceeds the Offer Deficiency Repurchase Amount, the Company is required to will purchase the Notes tendered Debentures delivered to it pro rata (in $1,000 increments only) among the Notes tendered (with such adjustments as may be appropriate so that only Notes in denominations Debentures delivered based on the relative principal amount of $1,000 and integral multiples thereof shall be purchased). The Company shall comply with all applicable federal and state securities laws in connection with each Purchase Offer. In no event shall Debentures owned by the failure of the Company’s Consolidated Net Worth to equal or exceed the Minimum Required Net Worth at the end of the fiscal quarter be counted toward the making of more than one Purchase OfferHolders delivering Debentures for repurchase. The Company may reduce credit against the principal amount of Notes Debentures to be purchased pursuant to the Purchase repurchased in any Deficiency Offer by subtracting 100% of the principal amount (excluding premium) of Notes Debentures acquired by the Company subsequent to the Deficiency Date and prior to the related Deficiency Payment Date through purchase (otherwise than pursuant to this Section 5.09 provision or Section 5.04 or Section 5.10 hereofa Change of Control Offer), optional redemption redemption, conversion or exchange and surrender surrendered for cancellation. In addition, on or before such Deficiency Payment Date, the Company shall:
(i) if the Company appoints a Depositary or Paying Agent, deposit with such Depositary or Paying Agent money sufficient to pay the repurchase price of all Debentures or portions thereof so accepted;
(ii) deliver or cause the Depositary or Paying Agent to deliver an Officers' Certificate stating such Debentures or portion thereof accepted for payment by the Company in accordance with the terms of this Section 4.5.
(e) Not later than two Business Days prior to the Deficiency Payment Date, the Company shall provide the Trustee with written notice of whether the Company elects to credit any Debentures against its obligation to repurchase Debentures as provided above and shall set forth the amount of such credit and the basis therefor (including identification of any previously cancelled Debentures not theretofore credited). Such notice shall be accompanied by any Debentures required to be delivered to the Trustee for cancellation, as provided above, in order to be credited against the Company's obligation to purchase Debentures hereunder.
(f) The Depositary, the Paying Agent or the Company, as the case may be, shall promptly (but in any case not later than five Business Days after the Deficiency Payment Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Debentures tendered by such Holder and accepted by the Company for purchase, and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Debenture equal in principal amount to any unpurchased portion of the Debenture surrendered. Any Debentures not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof.
Appears in 1 contract
Maintenance of Consolidated Net Worth. The Company is required to furnish to the Trustee an Officers’ ' Certificate within 55 days after the end of any fiscal quarter (100 days after the end of any fiscal year) notifying the Trustee that the Company’s 's Consolidated Net Worth has declined below $80.0 million (the “"Minimum Required Net Worth”") at the end of any fiscal quarter in which the Company’s 's Consolidated Net Worth has so declined. If, on the last day of each of any two consecutive fiscal quarters (the last day of the second fiscal quarter being referred to herein as a “"Deficiency Date”"), the Company’s 's Consolidated Net Worth is less than the Minimum Required Net Worth, then the Company is required, no later than 65 days after each such Deficiency Date (110 days if such Deficiency Date is the last day of the Company’s 's fiscal year), to make an offer to all Holders of Notes to purchase (a “"Purchase Offer”") 10% of the aggregate principal amount of the Notes theretofore issued under this First Supplemental Indenture (the “"Offer Amount”") at a purchase price equal to 100% of the principal amount of the Notes, plus accrued interest to the date of purchase. The Purchase Offer is required to remain open for a period of 20 Business Days following its commencement, except to the extent otherwise permitted by applicable law (as extended, the “"Offer Period”") and the Company is required to purchase the Offer Amount of the Notes on a designated date no later than one Business Day after the termination of the Offer Period, or if less than the Offer Amount of Notes shall have been tendered, all Notes then tendered; provided, however, that the Company shall not be obligated to purchase any of such Notes unless Holders of Notes of at least 10% of the Offer Amount shall have tendered and not subsequently withdrawn their Notes for repurchase. If the aggregate principal amount of Notes tendered exceeds the Offer Amount, the Company is required to purchase the Notes tendered to it pro rata among the Notes tendered (with such adjustments as may be appropriate so that only Notes in denominations of $1,000 and integral multiples thereof shall be purchased). The Company shall comply with all applicable federal and state securities laws in connection with each Purchase Offer. In no event shall the failure of the Company’s 's Consolidated Net Worth to equal or exceed the Minimum Required Net Worth at the end of the fiscal quarter be counted toward the making of more than one Purchase Offer. The Company may reduce the principal amount of Notes to be purchased pursuant to the Purchase Offer by subtracting 100% of the principal amount (excluding premium) of Notes acquired by the Company subsequent to the Deficiency Date through purchase (otherwise than pursuant to this Section 5.09 or Section 5.04 or Section 5.10 hereof), optional redemption or exchange and surrender for cancellation.
Appears in 1 contract
Maintenance of Consolidated Net Worth. The Company is required to furnish to (a) In the Trustee an Officers’ Certificate within 55 days after the end of any fiscal quarter (100 days after the end of any fiscal year) notifying the Trustee event that the Company’s 's Consolidated Net Worth has declined below $80.0 million (the “Minimum Required Net Worth”) at the end of any fiscal quarter in which the Company’s Consolidated Net Worth has so declined. If, on the last day of each of any two consecutive fiscal quarters (the last day of the such second fiscal quarter being referred to herein as a “Deficiency the "Trigger Date”), the Company’s Consolidated Net Worth ") is less than $75,000,000 (the "Minimum Required Net Worth"), then the Company is required, no later than 65 days after each such Deficiency Date (110 days if such Deficiency Date is the last day of the Company’s fiscal year), to shall make an offer to all Holders of Notes to purchase (a “Purchase "Net Worth Offer”") to acquire on a PRO RATA basis on the date (the "Net Worth Repurchase Date") that is 45 days following the date of the Net Worth Notice (as defined below), Securities in an aggregate principal amount equal to 10% of the aggregate amount of the Securities issued under the Indenture (or if less than 10% of the aggregate principal amount of the Notes theretofore Securities issued under this First Supplemental Indenture are then outstanding, all the Securities outstanding at the time) (the “"Net Worth Offer Amount”") at a purchase price equal to of 100% of the principal amount of the Notesthereof, plus accrued interest and Additional Interest, if any, to the date of purchase. The Purchase Offer is required to remain open for a period of 20 Business Days following its commencement, except to Net Worth Repurchase Date (the extent otherwise permitted by applicable law (as extended, the “Offer Period”) and the Company is required to purchase the Offer Amount of the Notes on a designated date no later than one Business Day after the termination of the Offer Period, or if less than the Offer Amount of Notes shall have been tendered, all Notes then tendered; provided, however, that the Company shall not be obligated to purchase any of such Notes unless Holders of Notes of at least 10% of the Offer Amount shall have tendered and not subsequently withdrawn their Notes for repurchase. If the aggregate principal amount of Notes tendered exceeds the Offer Amount, the Company is required to purchase the Notes tendered to it pro rata among the Notes tendered (with such adjustments as may be appropriate so that only Notes in denominations of $1,000 and integral multiples thereof shall be purchased"Net Worth Price"). The Company may credit against the Net Worth Offer Amount the principal amount of Securities acquired by the Company prior to the relevant Trigger Date through purchase, optional redemption or exchange. No credit shall comply with all applicable federal and state securities laws be made for any mandatory repurchase, including without limitation, repurchases pursuant to a Net Worth Offer, a Change of Control or a Net Proceeds Offer (as defined in connection with each Purchase Section 4.15). The Company, however, may not credit a specific Security in more than one Net Worth Offer. In no event shall the failure of the Company’s Consolidated Net Worth to equal or exceed for any fiscal quarter included in the calculation of Minimum Required Net Worth at which results in the end making of the fiscal quarter a Net Worth Offer be counted toward the making determination of more than one Purchase whether the Company is required to make a subsequent Net Worth Offer. The Company may reduce shall notify the Trustee promptly after the occurrence of any of the events specified in this Section 4.09 and shall notify the Trustee in writing if its Consolidated Net Worth is equal to or less than the Minimum Net Worth for any fiscal quarter.
(b) Within 30 days after the Trigger Date, the Company, or, at the request of the Company, the Trustee, shall give notice of the Net Worth Offer to each Holder (the "Net Worth Notice"). The Company shall also deliver a copy of the Net Worth Notice to the Trustee. Any such notice shall contain the following:
(1) the Net Worth Repurchase Date;
(2) the date by which the Net Worth Offer must be accepted by a Holder;
(3) the Net Worth Price and the Net Worth Offer Amount; and
(4) a statement that Securities are to be surrendered for payment of the Net Worth Price.
(c) To accept a Net Worth Offer a Holder shall deliver to the Company (if it is acting as its own trustee) or to a trustee designated by the Company for such purpose in the Net Worth Notice, on or before the 30th day after the date of the Net Worth Notice, or, if such day is a Legal Holiday, the next subsequent day which is not a Legal Holiday, (i) written notice of the Holder's acceptance of such offer, which notice shall set forth the name of the Holder, the principal amount of Notes Securities (or portions thereof) to be purchased repurchased, a statement that an acceptance of the Net Worth Offer is being made thereby and (ii) the Securities with respect to which the Net Worth Offer is being accepted, duly endorsed for transfer to the Company, and the Holder of such Securities shall be entitled to receive from the Company (if it is acting as its own paying agent) or such Paying Agent (designated by the Company for such purpose) a nontransferable receipt of deposit evidencing such deposit. Such written notice may be withdrawn upon further written notice delivered to such trustee on or prior to the third day preceding the Net Worth Repurchase Date. If the Net Worth Repurchase Date is between a regular record date for the payment of interest and the next succeeding interest payment date, any Security to be repurchased must be accompanied by funds equal to the interest payable on such succeeding interest payment date on the principal amount to be repurchased (unless such Security shall have been called for redemption, in which case no such payment shall be required), and the interest on the principal amount of the Security being repurchased will be paid on such next succeeding interest payment date to the registered Holder of such Security on the immediately preceding record date. A Security repurchased on an interest payment date need not be accompanied by any payment, and the interest on the principal amount of the Security being repurchased will be paid on such interest payment date to the registered Holder of such Security on the immediately preceding record date.
(d) In the event a Net Worth Offer is accepted in accordance with the terms hereof, the Company shall pay or cause to be paid the applicable Net Worth Price with respect to the Securities as to which the Net Worth Offer shall have been accepted (on a PRO RATA basis up to the Net Worth Offer Amount, plus accrued interest) to the Holder on the Net Worth Repurchase Date.
(e) On the Net Worth Repurchase Date, the Company shall deliver to the Trustee the amount of Securities to be credited against the Net Worth Offer Amount and shall 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 accordance with Section 2.04) an amount of money sufficient to pay the Net Worth Price payable in respect of all of the Securities which are to be repurchased on that date, but in no event shall the Company be obligated to deposit an amount in excess of the Net Worth Offer Amount, plus accrued interest.
(f) Both the notice of the Company and the notice of the Holder having been given as specified in this Section 4.09, the Securities to be repurchased shall, on the Net Worth Repurchase Date, become due and payable at the Net Worth Price applicable thereto and from and after such date (unless the Company shall default in the payment of the Net Worth Price) such Securities shall cease to bear interest. If any Security shall not be paid upon surrender thereof for repurchase, the principal and interest (to the extent lawful) shall, until paid, bear interest from the Net Worth Repurchase Date at the rate borne by such Security.
(g) Any Security which is to be submitted for repurchase only in part shall be delivered (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without any service charge, a new Security or Securities, of any authorized denomination as requested by such Holder, of the same tenor and in aggregate principal amount equal to and in exchange for the portion of the principal of such Security not submitted for repurchase.
(h) If any repurchase pursuant to the Purchase Offer by subtracting 100% of foregoing provisions constitutes a tender offer as defined under the principal amount (excluding premium) of Notes acquired by Exchange Act, the Company subsequent to will comply with the Deficiency Date through purchase (otherwise than pursuant to this Section 5.09 or Section 5.04 or Section 5.10 hereof), optional redemption or exchange requirements of Rule l4e-1 and surrender for cancellationany other tender offer rules under the Exchange Act which then may be applicable.
Appears in 1 contract
Samples: Indenture (Schuler Homes Inc)
