Sale-Leaseback Transactions. The Company shall not, and shall not permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-Leaseback Transaction other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”: (a) a Sale-Leaseback Transaction involving the leasing by the Company or any Restricted Subsidiary of model homes in the Company’s communities; (b) a Sale-Leaseback Transaction relating to a property entered into within 180 days after the later of the date of acquisition of such property by the Company or a Restricted Subsidiary or the date of the completion of construction or commencement of full operations on such property, whichever is later; (c) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of the Company or any Restricted Subsidiary (other than Funded Debt which by its terms or the terms of the instrument by which it was issued is subordinate in right of payment to the Notes) proceeds of the sale of such property, but only to the extent of the amount of proceeds so applied; (d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect of such Sale-Leaseback Transaction without equally and ratably securing the Notes; (e) a Sale-Leaseback Transaction between the Company and any Restricted Subsidiary or among Restricted Subsidiaries, provided that the lessor shall be the Company or a wholly-owned Restricted Subsidiary; and (f) a Sale-Leaseback Transaction which has a lease of no more than three years in length. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transaction, provided that the aggregate net sales proceeds from all Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions, together with all Indebtedness secured by Liens other than Permitted Liens, does not exceed 20% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q.
Appears in 4 contracts
Samples: Indenture (Lennar Corp /New/), Indenture (Lennar Corp /New/), Indenture (Lennar Corp /New/)
Sale-Leaseback Transactions. The Company shall will not, and shall will not permit any Restricted Principal Subsidiary to, after the date hereof, enter into any Sale-/Leaseback Transaction other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”with respect to any Principal Property unless:
(a1) a Sale-Leaseback Transaction involving the leasing by the Company or any Restricted Subsidiary of model homes such Principal Subsidiary, as applicable could have Incurred Indebtedness in an amount at least equal to the Company’s communities;
(b) a Attributable Indebtedness relating to such Sale-/Leaseback Transaction relating to a property entered into within 180 days after the later of the date of acquisition of such property by the Company or a Restricted Subsidiary or the date of the completion of construction or commencement of full operations on such property, whichever is later;
(c) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of the Company or any Restricted Subsidiary (other than Funded Debt which by its terms or the terms of the instrument by which it was issued is subordinate in right of payment to the Notes) proceeds of the sale of such property, but only to the extent of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon on the relevant property, at least equal in amount Principal Property to the then present value be leased (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect of such Sale-Leaseback Transaction without equally and ratably securing the Notes;) pursuant to Section 4.13; or
(e2) a the gross cash proceeds of such Sale-/Leaseback Transaction between are at least equal to the Fair Market Value of the Principal Property that is the subject of such Sale/Leaseback Transaction and within 365 days of the effective date of any such Sale/Leaseback Transaction, the Company applies the net proceeds of the sale of the Principal Property to (i) the prepayment or retirement of Indebtedness of the Company and its Subsidiaries (which may include the Notes) and/or (ii) the acquisition, construction or improvement of any Restricted Subsidiary property or among Restricted Subsidiaries, provided that asset useful in the lessor shall be business of the Company or its Principal Subsidiaries. For purposes of this Section 4.17:
(1) in determining compliance with any U.S. dollar-denominated restriction on the entering into of any Sale/Leaseback Transaction, the U.S. dollar-equivalent principal amount of Attributable Indebtedness denominated in a wholly-owned Restricted Subsidiaryforeign currency shall be calculated based upon the relevant currency exchange rate in effect on the date such Attributable Indebtedness in respect of such Sale/Leaseback Transaction was Incurred; and
(f2) a the maximum amount of Attributable Indebtedness that the Company or any Principal Subsidiary may Incur in respect of any Sale-/Leaseback Transaction which has shall not be deemed to be exceeded solely as a lease result of no more than three years in length. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transaction, provided that the aggregate net sales proceeds from all Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions, together with all Indebtedness secured by Liens other than Permitted Liens, does not exceed 20% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated fluctuations in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as exchange rate of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q.currencies.
Appears in 3 contracts
Samples: Indenture (Davita Inc.), Indenture (Davita Inc.), Indenture (Davita Inc.)
Sale-Leaseback Transactions. The Company shall not, and shall not permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-Leaseback Transaction other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
(a) Neither the Borrower nor any Guarantor may engage in a Sale-Leaseback Transaction involving transaction with any Person (other than the Borrower or a Guarantor) providing for the leasing by the Company Borrower or any Restricted Guarantor of any property of the Borrower or a Guarantor, except for transactions (i) involving a lease which will not exceed three years, including renewals (or which may be terminated by the Borrower or the applicable Guarantor within a period of not more than three years), (ii) involving a lease of property executed by the time of, or within 12 months after, the latest of the acquisition, completion of construction, or commencement of operations of such property, (iii) that were for the sale and leasing back to the Borrower or a Subsidiary of model homes in any property, and (iv) that were entered into prior to, or within 12 months of, the Company’s communities;Effective Date (a “Sale/Leaseback Transaction”), unless the net proceeds of the sale or transfer of the property to be leased are at least equal to the fair market value of such property and unless:
(bi) this Agreement would have allowed the Borrower or any of the Subsidiaries to create a Lien on such property to secure debt in an amount at least equal to the Attributable Indebtedness in respect of such Sale-/Leaseback Transaction relating without securing the Obligations pursuant to a property entered into Section 7.01; or
(ii) within 180 days after 360 days, the later Borrower or any Guarantor applies an amount equal to the net proceeds of such sale or transfer to:
(A) the voluntary retirement of any indebtedness of the Borrower or its Subsidiaries maturing by its terms more than one year from the date of acquisition issuance, assumption or guarantee thereof, or which is extendible or renewable at the sole option of the obligor in such property by the Company or a Restricted Subsidiary or manner that it may become payable more than one year from the date of issuance, assumption or guarantee, which ranks equally with the completion of construction or commencement of full operations on such property, whichever is later;
(c) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of the Company or any Restricted Subsidiary (other than Funded Debt which by its terms or the terms of the instrument by which it was issued is subordinate Loans in right of payment and owing to a Person other than the Borrower or any Affiliate of the Borrower; or
(B) the purchase of additional property that will constitute or form a part of property or other assets used or useful in a business permitted by Section 7.06, and which has a fair market value at least equal to the Notes) net proceeds of the sale of such property, but only to the extent of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer.
(c) Notwithstanding the provisions of the immediately preceding paragraph, the Borrower or any Guarantor may enter into a Sale/Leaseback Transaction which would otherwise be entitledsubject to Section 7.04(a) so as to create an aggregate amount of Attributable Indebtedness after giving effect thereto that does not, pursuant to together with all Exempted Debt, exceed the greater of (A) $75.0 million and (B) 2.5% of Consolidated Total Assets of the Borrower, determined on a Pro Forma Basis based on the consolidated balance sheet of the Borrower as of the end of the most recent fiscal quarter for which financial statements are available, in each case measured at the date of any Incurrence of Exempted Debt.
(d) For purposes of this Indenturecovenant:
(i) in determining compliance with any U.S. dollar-denominated restriction on the entering into of any Sale/Leaseback Transaction, to issue, assume or guarantee the U.S. dollar-equivalent principal amount of Attributable Indebtedness secured by denominated in a Lien foreign currency shall be calculated based upon the relevant property, at least equal currency exchange rate in amount to effect on the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments date such Attributable Indebtedness in respect of such Sale-/Leaseback Transaction without equally and ratably securing the Notes;
(e) a Sale-Leaseback Transaction between the Company and any Restricted Subsidiary or among Restricted Subsidiaries, provided that the lessor shall be the Company or a wholly-owned Restricted Subsidiarywas Incurred; and
(fii) a the maximum amount of Attributable Indebtedness the Borrower or any Guarantor may Incur in respect of any Sale-/Leaseback Transaction which has shall not be deemed to be exceeded solely as a lease result of no more than three years in length. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transaction, provided that the aggregate net sales proceeds from all Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions, together with all Indebtedness secured by Liens other than Permitted Liens, does not exceed 20% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated fluctuations in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as exchange rate of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q.currencies.
Appears in 2 contracts
Samples: Revolving Credit Agreement (MSCI Inc.), Revolving Credit Agreement (MSCI Inc.)
Sale-Leaseback Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-/Leaseback Transaction with any Person (other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
(a) a Sale-Leaseback Transaction involving the leasing by the Company or any other Subsidiary) unless:
(i) the Company or such Restricted Subsidiary would be entitled to incur Funded Debt secured by Liens in a principal amount equal to the Attributable Indebtedness (treated as if such Attributable Indebtedness were Funded Debt) with respect to such Sale/Leaseback Transaction in accordance with Section 4.07; provided, however, that Attributable Indebtedness in respect of model homes any Sale/Leaseback Transaction entered into pursuant to this clause (i) shall not count against the amount of Funded Debt permitted under the Secured Debt Basket for any other purpose, including when determining the amount available thereunder for future Sale/Leaseback Transactions or any Funded Debt transactions; or
(ii) the Company or such Restricted Subsidiary receives proceeds from such Sale/Leaseback Transaction at least equal to the fair market value thereof (as determined in good faith by the Company’s communities;) and such proceeds are applied in accordance Section 4.09(b).
(b) The Company may apply Net Available Proceeds from a Sale-/Leaseback Transaction relating to a property entered into Transaction, within 180 365 days after following the later receipt of Net Available Proceeds from such Sale/Leaseback Transaction, to:
(i) the date repayment of acquisition Indebtedness of such property by the Company or a Restricted Subsidiary under Credit Facilities or the date other Senior Indebtedness, including any mandatory redemption or repurchase or make-whole redemption of the completion of construction Existing Notes or commencement of full operations on such property, whichever is later;
(c) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of the Company or any Restricted Subsidiary (other than Funded Debt which by its terms or the terms of the instrument by which it was issued is subordinate in right of payment to the Notes) proceeds of the sale of such property, but only to the extent of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect of such Sale-Leaseback Transaction without equally and ratably securing the Notes;
(eii) make an Investment in assets used in the Oil and Gas Business; or
(iii) develop by drilling the Company’s oil and gas reserves; provided, that the Company shall be deemed to have complied with clause (ii) or clause (iii) of this Section 4.09(b), as applicable, if, within 365 days of such Sale/Leaseback Transaction, the Company shall have commenced and not completed or abandoned an Investment or development within the scope of such clause (ii) or clause (iii), respectively, or shall have executed a binding agreement with respect to an Investment or development within the scope of such clause (ii) or clause (iii), respectively, and such Investment or development is substantially completed within a date one year and six months after the date of such Sale/Leaseback Transaction.
(c) If, upon completion of the 365-day period following the receipt of Net Available Proceeds from a Sale/Leaseback Transaction, any portion of the Net Available Proceeds from such Sale/Leaseback Transaction shall not have been applied by the Company as described in clauses (i), (ii) or (iii) of Section 4.09(b) and such remaining Net Available Proceeds, together with any remaining net cash proceeds from any prior Sale/Leaseback Transaction (such aggregate constituting “Excess Proceeds”), exceed $20.0 million, then the Company shall make an offer (the “Net Proceeds Offer”) to purchase the Notes and any other Senior Indebtedness in respect of which such an offer to purchase is also required to be made concurrently with the Net Proceeds Offer having an aggregate principal amount equal to the Excess Proceeds (such purchase to be made on a pro rata basis if the amount available for such repurchase is less than the principal amount of the Notes and other such Senior Indebtedness tendered in such Net Proceeds Offer) at a purchase price of 100% of the principal amount thereof plus accrued interest thereon to the date of repurchase (the “Net Proceeds Purchase Price”). Upon the completion of such Net Proceeds Offer, the amount of Excess Proceeds shall be reset to zero.
(d) Within 15 days after the Company becomes obligated to make a Net Proceeds Offer (a “Net Proceeds Offer Triggering Event”), the Company shall mail or cause to be mailed to all Holders on the date of the Net Proceeds Offer Triggering Event a notice of the occurrence of such Net Proceeds Offer Triggering Event and of the Holders’ rights arising as a result thereof (the “Net Proceeds Offer Notice”). The Net Proceeds Offer Notice will state, among other things:
(1) that the Company is offering to purchase Notes pursuant to the provisions of this Indenture;
(2) that any Note (or any portion thereof) accepted for payment (and duly paid on the Net Proceeds Purchase Date) pursuant to the Net Proceeds Offer shall cease to accrue interest on the Net Proceeds Purchase Date;
(3) that any Notes (or portions thereof) not properly tendered will continue to accrue interest;
(4) the Net Proceeds Purchase Price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Net Proceeds Offer Notice is mailed (the “Net Proceeds Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a Sale-Leaseback Transaction between description of the Company procedure which Holders of Notes must follow in order to tender their Notes and any Restricted Subsidiary or among Restricted Subsidiaries, provided the procedures that the lessor shall be the Company or a wholly-owned Restricted SubsidiaryHolders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(f7) all other instructions and materials necessary to enable Holders of Notes to tender Notes pursuant to the Net Proceeds Offer.
(e) A Net Proceeds Offer will be deemed to have commenced upon mailing of the Offer Notice for such Net Proceeds Offer and will terminate 20 Business Days after its commencement, unless a Sale-Leaseback Transaction which has longer offering period is required by law. Promptly after the termination of a lease of no more than three years in length. Notwithstanding the foregoingNet Proceeds Offer, the Company mayshall purchase and mail or deliver payment for all Notes tendered and accepted in response to such Net Proceeds Offer.
(f) The Company will comply, to the extent applicable, with the requirements 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 purchase of Notes as described above. To the extent that the provisions of any securities laws or regulations conflict with the provisions relating to a Net Proceeds Offer, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.09 by virtue thereof.
(g) Holders electing to have Notes purchased hereunder will be required to surrender such Notes at the address specified in the notice prior to the Net Proceeds Purchase Date. Holders will be entitled to withdraw their election to have their Notes purchased pursuant to this Section 4.09 if the Company receives, not later than one Business Day prior to the Net Proceeds Purchase Date, a telegram, telex, facsimile transmission or letter setting forth (i) the name of the Holder, (ii) the certificate number of the Note in respect of which such notice of withdrawal is being submitted, (iii) the principal amount of the Note (which shall be $1,000 or whole multiples of $1,000 in excess thereof) delivered for purchase by the Holder as to which his election is to be withdrawn, (iv) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased, and may permit (v) the principal amount, if any, of such Note (which shall be $1,000 or whole multiples of $1,000 in excess thereof) that remains subject to the original Net Proceeds Offer Notice and that has been or will be delivered for purchase by the Company.
(h) On the Net Proceeds Purchase Date, the Company shall, to the extent lawful, (i) accept for payment Notes or portions thereof tendered pursuant to the Net Proceeds Offer, (ii) not later than 1:00 p.m. (New York time) on the Net Proceeds Purchase Date, deposit with the Paying Agent an amount equal to the payment in respect of all Notes or portions thereof so tendered, and (iii) not later than 1:00 p.m. (New York time) on the Net Proceeds Purchase Date, deliver to the Paying Agent the Notes so accepted together with an Officers’ Certificate stating the Notes or portions thereof tendered to the Company. The Depositary, the Company or the Paying Agent shall promptly mail or deliver to each Holder of Notes so accepted payment in an amount equal to the Net Proceeds Purchase Price for such Notes, and the Trustee shall promptly authenticate and mail or deliver to each Holder new Notes equal in principal amount to any Restricted Subsidiary tounpurchased portion of the Notes surrendered, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transactionif any, provided that each such new Notes will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. Any Notes not so accepted shall be promptly mailed or delivered by the aggregate net sales proceeds from all Sale-Leaseback Transactions Paying Agent at the Company’s expense to the Holder thereof. For purposes of this Section 4.09, the Company shall choose a Paying Agent which are shall not Permitted Sale-Leaseback Transactionsbe the Company.
(i) The Trustee and the Paying Agent shall return to the Company, upon its request, any cash that remains unclaimed for two years after an Net Proceeds Purchase Date, together with all Indebtedness secured interest, if any, thereon (subject to Section 7.01(f) held by Liens other than Permitted Liens, does not exceed 20% them for the payment of the total consolidated stockholders’ equity Net Proceeds Purchase Price, as the case may be; and the Holder of such tendered and accepted Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash, and all liability of the Company as shown trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company cause to be published once in The New York Times and The Wall Street Journal (national edition) or send to each Holder entitled to such money notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining shall be repaid to the Company; provided, further however, that (x) to the extent that the aggregate amount of cash deposited by the Company with the Trustee in respect of a Net Proceeds Offer, as the case may be, exceeds the aggregate Net Proceeds Purchase Price of the Notes or portions thereof to be purchased, then the Trustee shall hold such excess for the Company and (y) unless otherwise directed by the Company in writing, promptly after the Business Day following the Net Proceeds Purchase Date, as the case may be, the Trustee shall return any such excess to the Company together with interest or dividends, if any, thereon (subject to Section 7.01(f)).
(j) Notes to be purchased shall, on the most recent consolidated balance sheet that is contained or incorporated Net Proceeds Purchase Date, become due and payable at the Net Proceeds Purchase Price, and from and after such date (unless the Company shall default in the latest annual report on Form 10-K (or equivalent reportpayment of the Net Proceeds Purchase Price) or quarterly report on Form 10-Q (or equivalent report) filed such Notes shall cease to bear interest. Such Net Proceeds Purchase Price shall be paid to such Holder promptly following the later of the Net Proceeds Purchase Date and the time of delivery of such Note to the relevant Paying Agent at the office of such Paying Agent by the Holder thereof in the manner required. Upon surrender of any such Note for purchase in accordance with the SECforegoing provisions, and such Note shall be paid by the Company at the Net Proceeds Purchase Price; provided, however, that installments of interest whose Stated Maturity is as of a date not more than 181 days on or prior to the date Net Proceeds Purchase Date shall be payable to the Person in whose name the Notes are registered as such on the relevant record dates according to the terms and the provisions of determination, Section 2.03; provided further that Notes to be purchased are subject to proration in the case event the Excess Proceeds are less than the aggregate Net Proceeds Purchase Price of all Notes tendered for purchase, with such adjustments as may be appropriate by the Trustee so that only Notes in denominations of $1,000 or whole multiples of $1,000 in excess thereof, shall be purchased. If any Note tendered for purchase shall not be so paid upon surrender thereof by deposit of funds with the Trustee or a Paying Agent in accordance with Section 4.09(h), the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Net Proceeds Purchase Date at the rate borne by such Note. Any Note that is to be purchased only in part shall be surrendered to a Paying Agent at the office of such Paying Agent (with, if the Company, the Registrar or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Registrar or the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Note, without service charge, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case principal amount of the consolidated balance sheet contained in Note so surrendered that is not purchased. The Company shall publicly announce the quarterly report results of the Net Proceeds Offer on Form 10-Q.or as soon as practicable after the Net Proceeds Purchase Date.
Appears in 2 contracts
Samples: Indenture (Continental Resources, Inc), Indenture (Continental Resources, Inc)
Sale-Leaseback Transactions. The Company shall not(a) Except to the extent permitted under paragraph (c) below, and except for any transaction involving a lease for a temporary period, not to exceed three years, by the end of which it is intended that the use of the leased property by the Parent Guarantor or any Restricted Subsidiary will be discontinued and except for any transaction with a state or local authority that is required in connection with any program, law, statute or regulation that provides financial or tax benefits not available without such transaction, the Parent Guarantor shall not sell any Principal Plant as an entirety, or any substantial portion thereof, with the intention of taking back a lease of such property and the Parent Guarantor will not permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-Leaseback Transaction to sell to anyone other than Permitted Sale-Leaseback Transactions (the Parent Guarantor or a Restricted Subsidiary any Principal Plant as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”an entirety, or any substantial portion thereof, with the intention of taking back a lease of such property unless:
(ai) the net proceeds of such sale (including any purchase money mortgages received in connection with such sale) are at least equal to the fair market value (as determined by an officer of the Parent Guarantor) of such property; and
(ii) subject to paragraph (d) below, the Parent Guarantor shall, within 120 days after the transfer of title to such property (or, if the Parent Guarantor holds the net proceeds described below in cash or cash equivalents, within two years):
(A) purchase, and surrender to the Trustee for retirement as provided in this covenant, a Sale-Leaseback Transaction involving principal amount of Securities equal to the leasing by net proceeds derived from such sale (including the Company amount of any such purchase money mortgages), or
(B) repay other pari passu indebtedness of the Parent Guarantor or any Restricted Subsidiary in an amount equal to such net proceeds, or
(C) expend an amount equal to such net proceeds for the expansion, construction or acquisition of model homes a Principal Plant, or
(D) effect a combination of such purchases, repayments and plant expenditures in the Company’s communities;an amount equal to such net proceeds.
(b) At or prior to the date 120 days after a Sale-Leaseback Transaction relating transfer of title to a property entered into within 180 days after Principal Plant which shall be subject to the later requirements of this covenant, the Parent Guarantor shall furnish to the Trustee:
(i) an Officer’s Certificate stating that paragraph (a) of this covenant has been complied with and setting forth in detail the manner of such compliance, which certificate shall contain information as to:
(A) the amount of Securities theretofore redeemed and the amount of Securities theretofore purchased by the Parent Guarantor and cancelled by the Trustee and the amount of Securities purchased by the Parent Guarantor and then being surrendered to the Trustee for cancellation,
(B) the amount thereof previously credited under paragraph (d) below,
(C) the amount thereof which it then elects to have credited on its obligation under paragraph (d) below, and
(D) any amount of other indebtedness which the Parent Guarantor has repaid or will repay and of the date expenditures which the Parent Guarantor has made or will make in compliance with its obligation under paragraph (a), and
(ii) if applicable, a deposit with the Trustee for cancellation of acquisition the Securities then being surrendered as set forth in such certificate.
(c) Notwithstanding the restriction of paragraph (a), the Parent Guarantor and any one or more Restricted Subsidiaries may transfer property in sale-leaseback transactions which would otherwise be subject to such restriction if the aggregate principal amount of the fair market value of the property so transferred and not reacquired at such time, when added to the aggregate amount of indebtedness for borrowed money permitted by the last paragraph of the covenant described under “—Limitation on Liens” which shall be outstanding at the time (computed without duplication of the value of property transferred as provided in this paragraph (c)), does not at the time exceed 15% of Net Tangible Assets.
(d) The Parent Guarantor, at its option, shall be entitled to a credit, in respect of its obligation to purchase and retire Securities under this covenant, for the principal amount of any Securities deposited with the Trustee for the purpose and also for the principal amount of (i) any Securities theretofore redeemed at the option of the Parent Guarantor and (ii) any Securities previously purchased by the Parent Guarantor and cancelled by the Trustee, and in each case not theretofore applied as a credit under this paragraph (d) or as part of a sinking fund arrangement for the Securities.
(e) For purposes of this covenant, the amount or the principal amount of Securities which are issued with original issue discount shall be the principal amount of such property by the Company or a Restricted Subsidiary or Securities that on the date of the completion purchase or redemption of construction or commencement of full operations on such property, whichever is later;
(c) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes Securities referred to in this covenant could be declared to be applied due and payable pursuant to the retirement of any Funded Debt of the Company or any Restricted Subsidiary (other than Funded Debt which by its terms or the terms of the instrument by which it was issued is subordinate in right of payment to the Notes) proceeds of the sale of such property, but only to the extent of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect of such Sale-Leaseback Transaction without equally and ratably securing the Notes;
(e) a Sale-Leaseback Transaction between the Company and any Restricted Subsidiary or among Restricted Subsidiaries, provided that the lessor shall be the Company or a wholly-owned Restricted Subsidiary; and
(f) a Sale-Leaseback Transaction which has a lease of no more than three years in length. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transaction, provided that the aggregate net sales proceeds from all Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions, together with all Indebtedness secured by Liens other than Permitted Liens, does not exceed 20% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q..
Appears in 2 contracts
Samples: Indenture (Anheuser-Busch InBev SA/NV), Indenture (Anheuser-Busch InBev S.A.)
Sale-Leaseback Transactions. The Company shall not(a) Except to the extent permitted under paragraph (c) below, and except for any transaction involving a lease for a temporary period, not to exceed three years, by the end of which it is intended that the use of the leased property by the Parent Guarantor or any Restricted Subsidiary will be discontinued and except for any transaction with a state or local authority that is required in connection with any program, law, statute or regulation that provides financial or tax benefits not available without such transaction, the Parent Guarantor shall not sell any Principal Plant as an entirety, or any substantial portion thereof, with the intention of taking back a lease of such property and the Parent Guarantor will not permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-Leaseback Transaction to sell to anyone other than Permitted Sale-Leaseback Transactions (the Parent Guarantor or a Restricted Subsidiary any Principal Plant as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”an entirety, or any substantial portion thereof, with the intention of taking back a lease of such property unless:
(ai) the net proceeds of such sale (including any purchase money mortgages received in connection with such sale) are at least equal to the fair market value (as determined by an officer of the Parent Guarantor) of such property; and
(ii) subject to paragraph (d) below, the Parent Guarantor shall, within 120 days after the transfer of title to such property (or, if the Parent Guarantor holds the net proceeds described below in cash or cash equivalents, within two years)
(A) purchase, and surrender to the Trustee for retirement as provided in this covenant, a Sale-Leaseback Transaction involving principal amount of Securities equal to the leasing by net proceeds derived from such sale (including the Company amount of any such purchase money mortgages), or
(B) repay other pari passu indebtedness of the Parent Guarantor or any Restricted Subsidiary in an amount equal to such net proceeds, or
(C) expend an amount equal to such net proceeds for the expansion, construction or acquisition of model homes a Principal Plant, or
(D) effect a combination of such purchases, repayments and plant expenditures in the Company’s communities;an amount equal to such net proceeds.
(b) At or prior to the date 120 days after a Sale-Leaseback Transaction relating transfer of title to a property entered into within 180 days after Principal Plant which shall be subject to the later requirements of this covenant, the Parent Guarantor shall furnish to the Trustee:
(i) an Officer’s Certificate stating that paragraph (a) of this covenant has been complied with and setting forth in detail the manner of such compliance, which certificate shall contain information as to
(A) the amount of Securities theretofore redeemed and the amount of Securities theretofore purchased by the Parent Guarantor and cancelled by the Trustee and the amount of Securities purchased by the Parent Guarantor and then being surrendered to the Trustee for cancellation,
(B) the amount thereof previously credited under paragraph (d) below,
(C) the amount thereof which it then elects to have credited on its obligation under paragraph (d) below, and
(D) any amount of other indebtedness which the Parent Guarantor has repaid or will repay and of the date expenditures which the Parent Guarantor has made or will make in compliance with its obligation under paragraph (a), and
(ii) if applicable, a deposit with the Trustee for cancellation of acquisition the Securities then being surrendered as set forth in such certificate.
(c) Notwithstanding the restriction of paragraph (a), the Parent Guarantor and any one or more Restricted Subsidiaries may transfer property in sale-leaseback transactions which would otherwise be subject to such restriction if the aggregate principal amount of the fair market value of the property so transferred and not reacquired at such time, when added to the aggregate amount of indebtedness for borrowed money permitted by the last paragraph of the covenant described under “—Limitation on Liens” which shall be outstanding at the time (computed without duplication of the value of property transferred as provided in this paragraph (c)), does not at the time exceed 15% of Net Tangible Assets.
(d) The Parent Guarantor, at its option, shall be entitled to a credit, in respect of its obligation to purchase and retire Securities under this covenant, for the principal amount of any Securities deposited with the Trustee for the purpose and also for the principal amount of (i) any Securities theretofore redeemed at the option of the Parent Guarantor and (ii) any Securities previously purchased by the Parent Guarantor and cancelled by the Trustee, and in each case not theretofore applied as a credit under this paragraph (d) or as part of a sinking fund arrangement for the Securities.
(e) For purposes of this covenant, the amount or the principal amount of Securities which are issued with original issue discount shall be the principal amount of such property by the Company or a Restricted Subsidiary or Securities that on the date of the completion purchase or redemption of construction or commencement of full operations on such property, whichever is later;
(c) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes Securities referred to in this covenant could be declared to be applied due and payable pursuant to the retirement of any Funded Debt of the Company or any Restricted Subsidiary (other than Funded Debt which by its terms or the terms of the instrument by which it was issued is subordinate in right of payment to the Notes) proceeds of the sale of such property, but only to the extent of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect of such Sale-Leaseback Transaction without equally and ratably securing the Notes;
(e) a Sale-Leaseback Transaction between the Company and any Restricted Subsidiary or among Restricted Subsidiaries, provided that the lessor shall be the Company or a wholly-owned Restricted Subsidiary; and
(f) a Sale-Leaseback Transaction which has a lease of no more than three years in length. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transaction, provided that the aggregate net sales proceeds from all Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions, together with all Indebtedness secured by Liens other than Permitted Liens, does not exceed 20% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q..
Appears in 2 contracts
Samples: Indenture (Anheuser-Busch InBev SA/NV), Indenture (Brandbev S.a r.l.)
Sale-Leaseback Transactions. The Company shall not, covenants and shall not permit agrees that neither it nor any Restricted Subsidiary to, after the date hereof, of its Subsidiaries will enter into any Sale-/Leaseback Transaction with any Person (other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”the Company and its Subsidiaries) unless either:
(ai) a Sale-Leaseback Transaction involving the leasing by the Company or any Restricted such Subsidiary of model homes in the Company’s communities;
(b) a Sale-Leaseback Transaction relating to a property entered into within 180 days after the later of the date of acquisition of such property by the Company or a Restricted Subsidiary or the date of the completion of construction or commencement of full operations on such property, whichever is later;
(c) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of the Company or any Restricted Subsidiary (other than Funded Debt which by its terms or the terms of the instrument by which it was issued is subordinate in right of payment to the Notes) proceeds of the sale of such property, but only to the extent of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, would be entitled, pursuant to this IndentureSection 1005, to issueincur Debt, assume or guarantee Indebtedness in a principal amount equal to the Attributable Debt with respect to such Sale/Leaseback Transaction, secured by a Lien upon on the relevant property, at least equal in amount property subject to the then present value (discounted at the actual rate of interest of the such Sale-/Leaseback Transaction) of the obligation for the net rental payments in respect of such Sale-Leaseback Transaction , without equally and ratably securing the NotesSecurities;
(eii) after the date of the original issuance of the Securities and within a period commencing six months prior to the effective date of such Sale-/Leaseback Transaction between the Company and any Restricted Subsidiary or among Restricted Subsidiariesending six months thereafter, provided that the lessor shall be the Company or a wholly-owned Restricted SubsidiarySubsidiary of the Company has expended or will expend for any property (including amounts expended for the acquisition of such property, and for additions, alterations, improvements and repairs thereto) an amount equal to all or a portion of the net proceeds received from such transaction and elects to designate such amount as a credit against the application of the restrictions set forth herein and in Section 1005 to such transaction (with any such amount not being so designated to be applied as set forth in clause (iii) below); andor
(fiii) a the Company, during or immediately after the expiration of the six month period following the effective date of any such Sale-Leaseback Transaction which has a lease of no more than three years in length. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-/Leaseback Transaction, provided that applies to the aggregate net sales proceeds from all Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions, together with all Indebtedness secured by Liens other than Permitted Liens, does not exceed 20% voluntary defeasance or retirement of the total consolidated stockholders’ equity Securities of any series or any of the Company's other Senior Indebtedness, an amount equal to the greater of the net proceeds of the sale or transfer of the property leased in such transaction or the Attributable Debt as determined by the Company in good faith and certified in an Officers' Certificate delivered to the Trustee at the time of entering into such transaction (in either case adjusted to reflect the remaining term of the lease and any amount utilized by the Company or its Subsidiaries as shown on set forth in clause (ii) above), less an amount equal to the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as principal amount of a date not more than 181 days prior to Securities of any series delivered within six months after the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior such arrangement to the date Trustee for retirement and cancellation, excluding retirements of determination, in the case Securities of the consolidated balance sheet contained in the quarterly report on Form 10-Q.any series or of any Senior Indebtedness pursuant to mandatory sinking fund or mandatory prepayment provisions or by payment at maturity.
Appears in 2 contracts
Samples: Indenture (Stewart Enterprises Inc), Indenture (Stewart Enterprises Inc)
Sale-Leaseback Transactions. The Company shall not, and shall not permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-Leaseback Transaction other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “"Permitted Sale-Leaseback Transactions”":
(a1) a Sale-Leaseback Transaction involving the leasing by the Company or any Restricted Subsidiary of model homes in the Company’s 's communities;
(b2) a Sale-Leaseback Transaction relating to a property entered into within 180 days after the later of the date of acquisition of such property by the Company or a Restricted Subsidiary or the date of the completion of construction or commencement of full operations on such property, whichever is later;
(c3) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, Company applies or causes to be applied an amount equal to the net proceeds of such sale or transfer, within 365 days of receipt thereof, to the retirement or prepayment (other than any mandatory retirement or prepayment, except mandatory retirements or prepayments required as a result of any such Sale-Leaseback Transaction) of Funded Debt of the Company or any Restricted Subsidiary (other than Funded Debt which is not, by its terms or the terms of the instrument by which it was issued is issued, subordinate in right of payment to the Notes) proceeds of the sale of such property, but only to the extent of the amount of proceeds so applied;
(d4) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Supplemental Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect of such Sale-Leaseback Transaction without equally and ratably securing the Notes;
(e5) a Sale-Leaseback Transaction between the Company and any Restricted Subsidiary or among Restricted Significant Subsidiaries, provided that the lessor shall be the Company or a wholly-owned Restricted Subsidiary; and
(f6) a Sale-Leaseback Transaction which has a lease of no more than three years in length. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transaction, provided that the aggregate net sales proceeds from all Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions, together with all Indebtedness secured by Liens other than Permitted Liens, does not exceed 20% of the total consolidated stockholders’ ' equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SECCommission, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q.
Appears in 2 contracts
Samples: Eighth Supplemental Indenture (Lennar Corp /New/), Seventh Supplemental Indenture (Lennar Corp /New/)
Sale-Leaseback Transactions. The Company shall not, and shall not permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-Leaseback Transaction other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
(a) a Sale-Leaseback Transaction involving arrangement with any Person providing for the leasing by the Company and/or one or more Restricted Subsidiaries of any Principal Property (except for temporary leases for a term, including any renewal thereof, of not more than three years and except for leases between the Company and one or more Restricted Subsidiaries or between Restricted Subsidiaries) which property has been or is to be sold or transferred by the Company and/or such Restricted Subsidiary or Restricted Subsidiaries to such Person (a "Sale-Leaseback Transaction") unless (a) the Company and/or such Restricted Subsidiary or Restricted Subsidiaries would be entitled to incur Indebtedness secured by a Lien on such property without equally and ratably securing the Obligations pursuant to the provisions of model homes in the Company’s communities;
Section 9.01, or (b) a the Company shall apply or cause to be applied an amount equal to the Value of such Sale-Leaseback Transaction relating to a property entered into within 180 120 days after the later of the effective date of acquisition of such property by the Company or a Restricted Subsidiary or the date of the completion of construction or commencement of full operations on such property, whichever is later;
any arrangement (ci) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of Indebtedness for Borrowed Money incurred or assumed by the Company or any Restricted Subsidiary (other than Funded Debt indebtedness for borrowed money owed to the Company and/or one or more Restricted Subsidiaries) which by its terms matures on, or is extendable or renewable at the terms option of the instrument by obligor to, a date more than 12 months after the date of the incurrence or assumption of such indebtedness and which it was issued is subordinate senior in right of payment to, or ranks pari passu with, the Loans, or (ii) to the Notes) proceeds purchase of other property which will constitute "Principal Property" having a fair value in the opinion of the sale Board of such property, but only to the extent Directors of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect Value of such Sale-Leaseback Transaction without equally Transaction, or (c) the Company shall use the net proceeds to repay Loans hereunder. Notwithstanding the provisions of Sections 9.01 and ratably securing the Notes;
(e) a Sale-Leaseback Transaction between 9.02, the Company and any one or more of its Restricted Subsidiary Subsidiaries may nevertheless create or among Restricted Subsidiariesassume Liens which would otherwise require securing of the Obligations under said provisions, provided that the lessor shall be the Company or a wholly-owned Restricted Subsidiary; and
(f) a and enter into Sale-Leaseback Transaction which has a lease of no more than three years in length. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real Transactions without compliance with either Section 9.02(b) or tangible personal property which is not a Permitted Sale-Leaseback Transaction9.02(c), provided that the aggregate net sales proceeds from amount of all such Liens and Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions, together with permitted by this Section 9.02 at any time outstanding (as measured by the sum of (a) all Indebtedness secured by all such Liens other than Permitted Liensthen outstanding or to be so created or assumed, does but excluding secured Indebtedness permitted under the exceptions in Section 9.01, and (b) the Value of all such Sale-Leaseback Transactions then outstanding or to be so entered into, but excluding such transactions in which indebtedness is retired or property is purchased or Loans are repaid) shall not exceed 2010% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q.Net Tangible Assets.
Appears in 2 contracts
Samples: Credit Agreement (Georgia Pacific Corp), Credit Agreement (Georgia Pacific Corp)
Sale-Leaseback Transactions. The Company shall Borrower will not, and shall will not permit any Restricted Subsidiary of its Subsidiaries to, after the date hereof, enter into any Sale-Leaseback Transaction other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
(a) a Sale-Leaseback Transaction involving arrangement with any Person providing for the leasing by the Company Borrower and/or one or any Restricted Subsidiary of model homes in the Company’s communities;
(b) a Sale-Leaseback Transaction relating to a property entered into within 180 days after the later more Subsidiaries of the date Borrower of acquisition any equipment or Real Property (except for temporary leases for a term, including any renewal thereof, of such property not more than one year and except for leases between the Borrower and one or more Subsidiaries of the Borrower or between Subsidiaries of the Borrower) which equipment or Real Property has been or is to be sold or transferred by the Company or a Restricted Borrower and/or such Subsidiary or the date of the completion of construction or commencement of full operations on Subsidiaries to such property, whichever is later;
Person (c) a Sale-Leaseback Transaction where the Company, within 365 days after such "Sale-Leaseback Transaction, ") unless (i) the Borrower and/or such Subsidiary or Subsidiaries would be entitled to incur Indebtedness secured by a Lien on such equipment or Real Property without equally and ratably securing the Obligations pursuant to the provisions of Section 9.01 and (ii) the Borrower applies or causes to be applied an amount equal to the retirement of any Funded Debt of the Company or any Restricted Subsidiary (other than Funded Debt which by its terms or the terms of the instrument by which it was issued is subordinate in right of payment to the Notes) proceeds of the sale of such property, but only to the extent of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect Value of such Sale-Leaseback Transaction without equally within 180 days of the effective date of any arrangement either (x) to the purchase of other property to be used in the business of the Borrower and ratably securing its subsidiaries having a fair value in the Notes;
opinion of the Board of Directors of the Borrower at least equal to the Value of such Sale-Leaseback Transaction and/or (ey) to effect a permanent reduction in the Total Commitment pursuant to Section 3.02(a). Notwithstanding the provisions of Section 9.01 and this Section 9.02, (i) except for the Sale-Leaseback Transaction of the Farmington Hills Property, the aggregate amount of all such Liens and Sale-Leaseback Transactions permitted by this Section 9.02 at any time outstanding (as measured by the sum of (I) all Indebtedness or other obligations secured by all such Liens then outstanding or to be so created or assumed, and (II) the Value of all such Sale-Leaseback Transactions then outstanding or to be so entered into) shall not exceed 5% of Net Tangible Assets and (ii) the Borrower may consummate a Sale-Leaseback Transaction between of the Company and any Restricted Subsidiary or among Restricted Subsidiaries, provided that Farmington Hills Property so long as the lessor shall be Total Commitment is permanently reduced pursuant to Section 3.03(e) by an amount equal to the Company or a wholly-owned Restricted Subsidiary; and
(f) a Sale-Leaseback Transaction which has a lease Value of no more than three years in length. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted such Sale-Leaseback Transaction, provided that the aggregate net sales proceeds from all Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions, together with all Indebtedness secured by Liens other than Permitted Liens, does not exceed 20% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q..
Appears in 1 contract
Sale-Leaseback Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-/Leaseback Transaction with any Person (other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
(a) a Sale-Leaseback Transaction involving the leasing by the Company or any other Subsidiary) unless:
(i) the Company or such Restricted Subsidiary would be entitled to incur Funded Debt secured by Liens in a principal amount equal to the Attributable Indebtedness (treated as if such Attributable Indebtedness were Funded Debt) with respect to such Sale/Leaseback Transaction in accordance with Section 4.07; provided, however, that Attributable Indebtedness in respect of model homes any Sale/Leaseback Transaction entered into pursuant to this clause (i) shall not count against the amount of Funded Debt permitted under the Secured Debt Basket for any other purpose, including when determining the amount available thereunder for future Sale/Leaseback Transactions or any Funded Debt transactions; or
(ii) the Company or such Restricted Subsidiary receives proceeds from such Sale/Leaseback Transaction at least equal to the fair market value thereof (as determined in good faith by the Company’s communities;) and such proceeds are applied in accordance Section 4.09.(b) or (c).
(b) The Company may apply Net Available Proceeds from a Sale-/Leaseback Transaction relating to a property entered into Transaction, within 180 365 days after following the later receipt of Net Available Proceeds from such Sale/Leaseback Transaction, to:
(i) the date repayment of acquisition Indebtedness of such property by the Company or a Restricted Subsidiary under Credit Facilities or the date other Senior Indebtedness, including any mandatory redemption or repurchase or make-whole redemption of the completion of construction Existing Notes or commencement of full operations on such property, whichever is later;
(c) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of the Company or any Restricted Subsidiary (other than Funded Debt which by its terms or the terms of the instrument by which it was issued is subordinate in right of payment to the Notes) proceeds of the sale of such property, but only to the extent of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect of such Sale-Leaseback Transaction without equally and ratably securing the Notes;
(eii) make an Investment in assets used in the Oil and Gas Business; or
(iii) develop by drilling the Company’s oil and gas reserves; provided, that the Company shall be deemed to have complied with clause (ii) or clause (iii) of this Section 4.09.(b), as applicable, if, within 365 days of such Sale/Leaseback Transaction, the Company shall have commenced and not completed or abandoned an Investment or development within the scope of such clause (ii) or clause (iii), respectively, or shall have executed a binding agreement with respect to an Investment or development within the scope of such clause (ii) or clause (iii), respectively, and such Investment or development is substantially completed within a date one year and six months after the date of such Sale/Leaseback Transaction.
(c) If, upon completion of the 365-day period following the receipt of Net Available Proceeds from a Sale/Leaseback Transaction, any portion of the Net Available Proceeds from such Sale/Leaseback Transaction shall not have been applied by the Company as described in clauses (i), (ii) or (iii) of Section 4.09.(b) and such remaining Net Available Proceeds, together with any remaining net cash proceeds from any prior Sale/Leaseback Transaction (such aggregate constituting “Excess Proceeds”), exceed $20.0 million, then the Company shall make an offer (the “Net Proceeds Offer”) to purchase the Notes and any other Senior Indebtedness in respect of which such an offer to purchase is also required to be made concurrently with the Net Proceeds Offer having an aggregate principal amount equal to the Excess Proceeds (such purchase to be made on a pro rata basis if the amount available for such repurchase is less than the principal amount of the Notes and other such Senior Indebtedness tendered in such Net Proceeds Offer) at a purchase price of 100% of the principal amount thereof plus accrued interest thereon to the date of repurchase (the “Net Proceeds Purchase Price”). Upon the completion of such Net Proceeds Offer, the amount of Excess Proceeds shall be reset to zero.
(d) Within 15 days after the Company becomes obligated to make a Net Proceeds Offer (a “Net Proceeds Offer Triggering Event”), the Company shall send or cause to be sent to all Holders on the date of the Net Proceeds Offer Triggering Event a notice of the occurrence of such Net Proceeds Offer Triggering Event and of the Holders’ rights arising as a result thereof (the “Net Proceeds Offer Notice”). The Net Proceeds Offer Notice will state, among other things:
(1) that the Company is offering to purchase Notes pursuant to the provisions of this Indenture;
(2) that any Note (or any portion thereof) accepted for payment (and duly paid on the Net Proceeds Purchase Date) pursuant to the Net Proceeds Offer shall cease to accrue interest on the Net Proceeds Purchase Date;
(3) that any Notes (or portions thereof) not properly tendered will continue to accrue interest;
(4) the Net Proceeds Purchase Price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Net Proceeds Offer Notice is mailed (the “Net Proceeds Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a Sale-Leaseback Transaction between description of the Company procedure which Holders of Notes must follow in order to tender their Notes and any Restricted Subsidiary or among Restricted Subsidiaries, provided the procedures that the lessor shall be the Company or a wholly-owned Restricted SubsidiaryHolders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(f7) all other instructions and materials necessary to enable Holders of Notes to tender Notes pursuant to the Net Proceeds Offer.
(e) A Net Proceeds Offer will be deemed to have commenced upon sending of the Offer Notice for such Net Proceeds Offer and will terminate 20 Business Days after its commencement, unless a Sale-Leaseback Transaction which has longer offering period is required by law. Promptly after the termination of a lease of no more than three years in length. Notwithstanding the foregoingNet Proceeds Offer, the Company mayshall purchase and mail or deliver payment for all Notes tendered and accepted in response to such Net Proceeds Offer.
(f) The Company will comply, to the extent applicable, with the requirements 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 purchase of Notes as described above. To the extent that the provisions of any securities laws or regulations conflict with the provisions relating to a Net Proceeds Offer, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.09 by virtue thereof.
(g) Holders electing to have Notes purchased hereunder will be required to surrender such Notes at the address specified in the notice prior to the Net Proceeds Purchase Date. Holders will be entitled to withdraw their election to have their Notes purchased pursuant to this Section 4.09 if the Company receives, not later than one Business Day prior to the Net Proceeds Purchase Date, a telegram, telex, facsimile transmission or letter setting forth (i) the name of the Holder, (ii) the certificate number of the Note in respect of which such notice of withdrawal is being submitted, (iii) the principal amount of the Note (which shall be $1,000 or whole multiples of $1,000 in excess thereof) delivered for purchase by the Holder as to which his election is to be withdrawn, (iv) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased, and may permit (v) the principal amount, if any, of such Note (which shall be $1,000 or whole multiples of $1,000 in excess thereof) that remains subject to the original Net Proceeds Offer Notice and that has been or will be delivered for purchase by the Company.
(h) On the Net Proceeds Purchase Date, the Company shall, to the extent lawful, (i) accept for payment Notes or portions thereof tendered pursuant to the Net Proceeds Offer, (ii) not later than 1:00 p.m. (New York time) on the Net Proceeds Purchase Date, deposit with the Paying Agent an amount equal to the payment in respect of all Notes or portions thereof so tendered, and (iii) not later than 1:00 p.m. (New York time) on the Net Proceeds Purchase Date, deliver to the Paying Agent the Notes so accepted together with an Officers’ Certificate stating the Notes or portions thereof tendered to the Company. The Depositary, the Company or the Paying Agent shall promptly mail or deliver to each Holder of Notes so accepted payment in an amount equal to the Net Proceeds Purchase Price for such Notes, and the Trustee shall promptly authenticate and mail or deliver to each Holder new Notes equal in principal amount to any Restricted Subsidiary tounpurchased portion of the Notes surrendered, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transactionif any, provided that each such new Notes will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. Any Notes not so accepted shall be promptly mailed or delivered by the aggregate net sales proceeds from all Sale-Leaseback Transactions Paying Agent at the Company’s expense to the Holder thereof. For purposes of this Section 4.09, the Company shall choose a Paying Agent which are shall not Permitted Sale-Leaseback Transactionsbe the Company.
(i) The Trustee and the Paying Agent shall return to the Company, upon its request, any cash that remains unclaimed for two years after an Net Proceeds Purchase Date, together with all Indebtedness secured interest, if any, thereon (subject to Section 7.01.(f) held by Liens other than Permitted Liens, does not exceed 20% them for the payment of the total consolidated stockholders’ equity Net Proceeds Purchase Price, as the case may be; and the Holder of such tendered and accepted Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash, and all liability of the Company as shown trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company cause to be published once in The New York Times and The Wall Street Journal (national edition) or send to each Holder entitled to such money notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining shall be repaid to the Company; provided, further however, that (x) to the extent that the aggregate amount of cash deposited by the Company with the Trustee in respect of a Net Proceeds Offer, as the case may be, exceeds the aggregate Net Proceeds Purchase Price of the Notes or portions thereof to be purchased, then the Trustee shall hold such excess for the Company and (y) unless otherwise directed by the Company in writing, promptly after the Business Day following the Net Proceeds Purchase Date, as the case may be, the Trustee shall return any such excess to the Company together with interest or dividends, if any, thereon (subject to Section 7.01.(f)).
(j) Notes to be purchased shall, on the most recent consolidated balance sheet that is contained or incorporated Net Proceeds Purchase Date, become due and payable at the Net Proceeds Purchase Price, and from and after such date (unless the Company shall default in the latest annual report on Form 10-K (or equivalent reportpayment of the Net Proceeds Purchase Price) or quarterly report on Form 10-Q (or equivalent report) filed such Notes shall cease to bear interest. Such Net Proceeds Purchase Price shall be paid to such Holder promptly following the later of the Net Proceeds Purchase Date and the time of delivery of such Note to the relevant Paying Agent at the office of such Paying Agent by the Holder thereof in the manner required. Upon surrender of any such Note for purchase in accordance with the SECforegoing provisions, and such Note shall be paid by the Company at the Net Proceeds Purchase Price; provided, however, that installments of interest whose Stated Maturity is as of a date not more than 181 days on or prior to the date Net Proceeds Purchase Date shall be payable to the Person in whose name the Notes are registered as such on the relevant record dates according to the terms and the provisions of determination, Section 2.03; provided further in the case event the Excess Proceeds allocable to the Notes are less than the aggregate Net Proceeds Purchase Price of all Notes tendered for purchase, such Notes tendered for purchase shall be selected on a pro rata basis with such adjustments as may be appropriate by the Trustee so that only Notes in denominations of $1,000 or whole multiples of $1,000 in excess thereof, shall be purchased. If any Note tendered for purchase shall not be so paid upon surrender thereof by deposit of funds with the Trustee or a Paying Agent in accordance with Section 4.09.(h), the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Net Proceeds Purchase Date at the rate borne by such Note. Any Note that is to be purchased only in part shall be surrendered to a Paying Agent at the office of such Paying Agent (with, if the Company, the Registrar or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Registrar or the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Note, without service charge, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case principal amount of the consolidated balance sheet contained in Note so surrendered that is not purchased. The Company shall publicly announce the quarterly report results of the Net Proceeds Offer on Form 10-Q.or as soon as practicable after the Net Proceeds Purchase Date.
Appears in 1 contract
Sale-Leaseback Transactions. The Company shall not, and shall not --------------------------- permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-Leaseback Transaction other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
(a) a Sale-Leaseback Transaction involving arrangement with any Person providing for the leasing by the Company and/or one or more Restricted Subsidiaries of any Principal Property (except for temporary leases for a term, including any renewal thereof, of not more than three years and except for leases between the Company and one or more Restricted Subsidiaries or between Restricted Subsidiaries) which property has been or is to be sold or transferred by the Company and/or such Restricted Subsidiary or Restricted Subsidiaries to such Person (a "Sale-Leaseback -------------- Transaction") unless (a) the Company and/or such Restricted Subsidiary or ----------- Restricted Subsidiaries would be entitled to incur Indebtedness secured by a Lien on such property without equally and ratably securing the Obligations pursuant to the provisions of model homes in the Company’s communities;
Section 8.01, or (b) a the Company shall apply or ------------ cause to be applied an amount equal to the Value of such Sale-Leaseback Transaction relating to a property entered into within 180 120 days after the later of the effective date of acquisition of such property by the Company or a Restricted Subsidiary or the date of the completion of construction or commencement of full operations on such property, whichever is later;
any arrangement (ci) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of Indebtedness for Borrowed Money incurred or assumed by the Company or any Restricted Subsidiary (other than Funded Debt indebtedness for borrowed money owed to the Company and/or one or more Restricted Subsidiaries) which by its terms matures on, or is extendable or renewable at the terms option of the instrument by obligor to, a date more than 12 months after the date of the incurrence or assumption of such indebtedness and which it was issued is subordinate senior in right of payment to, or ranks pari passu ---- ----- with, the Loans, or (ii) to the Notes) proceeds purchase of other property which will constitute "Principal Property" having a fair value in the opinion of the sale Board of such property, but only to the extent Directors of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect Value of such Sale-Leaseback Transaction without equally Transaction, or (c) the Company shall use the net proceeds to repay Loans hereunder. Notwithstanding the provisions of Sections 8.01 and ratably 8.02, the Company and ------------- ---- any one or more of its Restricted Subsidiaries may nevertheless create or assume Liens which would otherwise require securing of the Notes;
(e) a Obligations under said provisions, and enter into Sale-Leaseback Transaction between the Company and any Restricted Subsidiary Transactions without compliance with either Section 8.02(b) or among Restricted Subsidiaries, provided that the lessor shall be the Company or a wholly-owned Restricted Subsidiary; and
(f) a Sale-Leaseback Transaction which has a lease of no more than three years in length. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transaction8.02(c), provided that the aggregate net sales proceeds from amount of all -------------------------- -------- such Liens and Sale-Leaseback Transactions which are not Permitted Salepermitted by Section 8.02 of this ------------ Agreement, the Asset Disposition Bridge Facility, and Capital Markets Bridge Facility and Section 9.02 of the Multi-Leaseback Transactions, together with Year Revolver at any time outstanding (as ------------ measured by the sum of (a) all Indebtedness secured by all such Liens other than Permitted Liensthen outstanding or to be so created or assumed, does but excluding secured Indebtedness permitted under the exceptions in Section 8.01, and (b) the Value of all such ------------ Sale-Leaseback Transactions then outstanding or to be so entered into, but excluding such transactions in which indebtedness is retired or property is purchased or Loans under any of the Disposition Bridge Facility or Capital Markets Bridge Facility are repaid, or, if no such amounts are outstanding, if Loans under this Agreement or the Multi-Year Revolver are repaid) shall not exceed 2010% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q.Net Tangible Assets.
Appears in 1 contract
Sale-Leaseback Transactions. The Company shall not, and shall not permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-Leaseback Transaction other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
(a) a Sale-Leaseback Transaction involving arrangement with any Person providing for the leasing by the Company and/or one or more Restricted Subsidiaries of any Principal Property (except for temporary leases for a term, including any renewal thereof, of not more than three years and except for leases between the Company and one or more Restricted Subsidiaries or between Restricted Subsidiaries) which property has been or is to be sold or transferred by the Company and/or such Restricted Subsidiary or Restricted Subsidiaries to such Person (a "Sale-Leaseback Transaction") unless (a) the Company and/or such Restricted Subsidiary or Restricted Subsidiaries would be entitled to incur Indebtedness secured by a Lien on such property without equally and ratably securing the Obligations pursuant to the provisions of model homes in the Company’s communities;
Section 9.01, or (b) a the Company shall apply or cause to be applied an amount equal to the Value of such Sale-Leaseback Transaction relating to a property entered into within 180 120 days after the later of the effective date of acquisition of such property by the Company or a Restricted Subsidiary or the date of the completion of construction or commencement of full operations on such property, whichever is later;
any arrangement (ci) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of Indebtedness for Borrowed Money incurred or assumed by the Company or any Restricted Subsidiary (other than Funded Debt indebtedness for borrowed money owed to the Company and/or one or more Restricted Subsidiaries) which by its terms matures on, or is extendable or renewable at the terms option of the instrument by obligor to, a date more than 12 months after the date of the incurrence or assumption of such indebtedness and which it was issued is subordinate senior in right of payment to, or ranks pari passu with, the Loans, or (ii) to the Notes) proceeds purchase of other property which will constitute "Principal Property" having a fair value in the opinion of the sale Board of such property, but only to the extent Directors of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect Value of such Sale-Leaseback Transaction without equally Transaction, or (c) the Company shall use the net proceeds to repay Loans hereunder. Notwithstanding the provisions of Sections 9.01 and ratably securing the Notes;
(e) a Sale-Leaseback Transaction between 9.02, the Company and any one or more of its Restricted Subsidiary Subsidiaries may nevertheless create or among Restricted Subsidiariesassume Liens which would otherwise require securing of the Obligations under said provisions, provided that the lessor shall be the Company or a wholly-owned Restricted Subsidiary; and
(f) a and enter into Sale-Leaseback Transaction which has a lease of no more than three years in length. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real Transactions without compliance with either Section 9.02(b) or tangible personal property which is not a Permitted Sale-Leaseback Transaction9.02(c), provided that the aggregate net sales proceeds from amount of all such Liens and Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions, together with permitted by this Section 9.02 at any time outstanding (as measured by the sum of (a) all Indebtedness secured by all such Liens other than Permitted Liensthen outstanding or to be so created or assumed, does but excluding secured Indebtedness permitted under the exceptions in Section 9.01, and (b) the Value of all such Sale-Leaseback Transactions then outstanding or to be so entered into, but excluding such transactions in which indebtedness is retired or property is purchased or Loans are repaid) shall not exceed 2010% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q.Net Tangible Assets. sf712790 57
Appears in 1 contract
Sale-Leaseback Transactions. The Company shall not, and shall not permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-Leaseback Transaction other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
(a) a Sale-Leaseback Transaction involving arrangement with any Person providing for the leasing by the Company and/or one or more Restricted Subsidiaries of any Principal Property (except for temporary leases for a term, including any renewal thereof, of not more than three years and except for leases between the Company and one or more Restricted Subsidiaries or between Restricted Subsidiaries) which property has been or is to be sold or transferred by the Company and/or such Restricted Subsidiary or Restricted Subsidiaries to such Person (a “Sale-Leaseback Transaction”) unless (a) the Company and/or such Restricted Subsidiary or Restricted Subsidiaries would be entitled to incur Indebtedness secured by a Lien on such property without equally and ratably securing the Obligations pursuant to the provisions of model homes in the Company’s communities;
Section 8.01, or (b) a the Company shall apply or cause to be applied an amount equal to the Value of such Sale-Leaseback Transaction relating to a property entered into within 180 120 days after the later of the effective date of acquisition of such property by the Company or a Restricted Subsidiary or the date of the completion of construction or commencement of full operations on such property, whichever is later;
any arrangement (ci) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of Indebtedness for Borrowed Money incurred or assumed by the Company or any Restricted Subsidiary (other than Funded Debt indebtedness for borrowed money owed to the Company and/or one or more Restricted Subsidiaries) which by its terms matures on, or is extendable or renewable at the terms option of the instrument by obligor to, a date more than 12 months after the date of the incurrence or assumption of such indebtedness and which it was issued is subordinate senior in right of payment to, or ranks pari passu with, the Loans, or (ii) to the Notes) proceeds purchase of other property which will constitute “Principal Property” having a fair value in the opinion of the sale Board of such property, but only to the extent Directors of the amount Company Table of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, Contents at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect Value of such Sale-Leaseback Transaction without equally Transaction, or (c) the Company shall use the net proceeds to repay Loans hereunder. Notwithstanding the provisions of Sections 8.01 and ratably securing the Notes;
(e) a Sale-Leaseback Transaction between 8.02, the Company and any one or more of its Restricted Subsidiary Subsidiaries may nevertheless create or among Restricted Subsidiariesassume Liens which would otherwise require securing of the Obligations under said provisions, provided that the lessor shall be the Company or a wholly-owned Restricted Subsidiary; and
(f) a and enter into Sale-Leaseback Transaction which has a lease of no more than three years in length. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real Transactions without compliance with either Section 8.02(b) or tangible personal property which is not a Permitted Sale-Leaseback Transaction8.02(c), provided that the aggregate net sales proceeds from amount of all such Liens and Sale-Leaseback Transactions which are not Permitted Salepermitted by Section 8.2 of this Agreement and Section 9.02 of the Existing Multi-Leaseback Transactions, together with Year Revolver at any time outstanding (as measured by the sum of (a) all Indebtedness secured by all such Liens other than Permitted Liensthen outstanding or to be so created or assumed, does but excluding secured Indebtedness permitted under the exceptions in Section 8.01, and (b) the Value of all such Sale-Leaseback Transactions then outstanding or to be so entered into, but excluding such transactions in which indebtedness is retired or property is purchased or Loans are repaid) shall not exceed 2010% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q.Net Tangible Assets.
Appears in 1 contract
Sale-Leaseback Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-/Leaseback Transaction with any Person (other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
(a) a Sale-Leaseback Transaction involving the leasing by the Company or any other Subsidiary) unless:
(i) the Company or such Restricted Subsidiary would be entitled to incur Funded Debt secured by Liens in a principal amount equal to the Attributable Indebtedness (treated as if such Attributable Indebtedness were Funded Debt) with respect to such Sale/Leaseback Transaction in accordance with Section 4.07; provided, however, that Attributable Indebtedness in respect of model homes any Sale/Leaseback Transaction entered into pursuant to this clause (i) shall not count against the amount of Funded Debt permitted under the Secured Debt Basket for any other purpose, including when determining the amount available thereunder for future Sale/Leaseback Transactions or any Funded Debt transactions; or
(ii) the Company or such Restricted Subsidiary receives proceeds from such Sale/Leaseback Transaction at least equal to the fair market value thereof (as determined in good faith by the Company’s communities;) and such proceeds are applied in accordance Section 4.09(b) or (c).
(b) The Company may apply Net Available Proceeds from a Sale-/Leaseback Transaction relating to a property entered into Transaction, within 180 365 days after following the later receipt of Net Available Proceeds from such Sale/Leaseback Transaction, to:
(i) the date repayment of acquisition Indebtedness of such property by the Company or a Restricted Subsidiary under Credit Facilities or the date other Senior Indebtedness, including any mandatory redemption or repurchase or make-whole redemption of the completion of construction Existing Notes or commencement of full operations on such property, whichever is later;
(c) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of the Company or any Restricted Subsidiary (other than Funded Debt which by its terms or the terms of the instrument by which it was issued is subordinate in right of payment to the Notes) proceeds of the sale of such property, but only to the extent of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect of such Sale-Leaseback Transaction without equally and ratably securing the Notes;
(eii) a Sale-Leaseback Transaction between make an Investment in assets used in the Oil and Gas Business; or
(iii) develop by drilling the Company’s oil and gas reserves; provided, that the Company and any Restricted Subsidiary or among Restricted Subsidiaries, provided that the lessor shall be the Company deemed to have complied with clause (ii) or a wholly-owned Restricted Subsidiary; and
clause (fiii) a of this Section 4.09(b), as applicable, if, within 365 days of such Sale-/Leaseback Transaction which has a lease of no more than three years in length. Notwithstanding the foregoingTransaction, the Company mayshall have commenced and not completed or abandoned an Investment or development within the scope of such clause (ii) or clause (iii), respectively, or shall have executed a binding agreement with respect to an Investment or development within the scope of such clause (ii) or clause (iii), respectively, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real such Investment or tangible personal property which development is not a Permitted Sale-Leaseback Transaction, provided that the aggregate net sales proceeds from all Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions, together with all Indebtedness secured by Liens other than Permitted Liens, does not exceed 20% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of substantially completed within a date not more than 181 days prior to one year and six months after the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q.such Sale/Leaseback Transaction.
Appears in 1 contract
Sale-Leaseback Transactions. The Company Notwithstanding anything to the contrary contained herein or any other Operative Agreement, upon not less than _ days prior written notice to the parties hereto, the Owner shall not, have the right to sell the Aircraft and transfer title to the Aircraft to an owner trustee for the benefit of an owner participant (which shall not permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-Leaseback Transaction other than Permitted Sale-Leaseback Transactions be a "Transferee" (as defined belowin the form of Leased Aircraft Participation Agreement (as such term is defined in the Note Purchase Agreement)) in a transaction in which such owner trustee assumes all of the obligations of the Owner under the Equipment Notes and the Trust Indenture on a non-recourse basis (with the Owner being released from such obligations, except to the extent accrued prior thereto), leases the Aircraft to the Owner and assigns such lease to the Mortgagee pursuant to an amended and restated trust indenture (a "Sale/Leaseback Transaction"). The following In connection with such Sale/Leaseback Transaction, each of the parties hereto and each Note Holder will execute and deliver appropriate documentation permitting the owner trustee to assume the obligations of the Owner under the Equipment Notes and the Trust Indenture on a non-recourse basis, releasing the Owner from all obligations in respect of the Equipment Notes and the Trust Indenture (except to the extent accrued prior thereto), and take all other actions as are reasonably necessary to permit such assumption by the owner trustee. In connection with any such Sale/Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
Transaction, the parties agree that (a) the documents to be utilized shall be (i) an amended and restated participation agreement amending and restating the Participation Agreement, such amended and restated participation agreement to be substantially in the form of the Leased Aircraft Participation Agreement (as such term is defined in the Note Purchase Agreement), among the parties hereto, any Note Holder which is not a Sale-Leaseback Transaction involving party hereto and the leasing owner trustee and owner participant, with (x) such changes to such form to reflect the assumption of the Equipment Notes by the Company or any Restricted Subsidiary owner trustee on a non-recourse basis rather than the issuance thereof by the owner trustee and purchase thereof by the Pass Through Trustee and also to reflect the release of model homes the Owner from all obligations under the Equipment Notes and the Trust Indenture (except to the extent accrued prior thereto) and (y) such other changes as may be permitted in accordance with the Note Purchase Agreement applicable to the revision of the Leased Aircraft Participation Agreement in connection with a leveraged lease transaction, (ii) a lease agreement, such lease agreement to be substantially in the Company’s communities;
form of the Lease (as such term is defined in the Note Purchase Agreement), between the Owner and the owner trustee with such changes as may be permitted in accordance with the provisions of the Note Purchase Agreement applicable to the revision of the Lease in connection with a leveraged lease transaction, (iii) an amended and restated trust indenture amending and restating the Trust Indenture, such amended and restated trust indenture to be substantially in the form of the Leased Aircraft Indenture (as such term is defined in the Note Purchase Agreement), between the owner trustee and the Indenture Trustee, with (x) such changes to such form to reflect the assumption of all of the obligations of the Owner under the Equipment Notes and the Trust Indenture on a non-recourse basis and the release of the obligations of the Owner under the Equipment Notes and the Trust Indenture and (y) such other changes as may be permitted in accordance with the Note Purchase Agreement applicable to the revision of the Leased Aircraft Indenture in connection with a leveraged lease transaction, a (iv) purchase agreement assignment, such purchase agreement assignment to be substantially in the form of the Aircraft Purchase Agreement Assignment (as such term is defined in the Note Purchase Agreement) between the Owner and the owner trustee with such changes as may be permitted in accordance with the provisions of the Note Purchase Agreement applicable to the Aircraft Purchase Agreement Assignment in connection with a leveraged lease transaction, and (v) a trust agreement, such trust agreement to be substantially in the form of the Leased Aircraft Trust Agreement (as such term is defined in the Note Purchase Agreement), between the owner trustee and the owner participant with such changes as may be permitted in accordance with the provisions of the Note Purchase Agreement applicable to the Leased Aircraft Trust Agreement in connection with a leveraged lease transaction and (b) the Equipment Notes shall be delivered to the Indenture Trustee for cancellation in exchange for new equipment notes to be issued to the Note Holders by the owner trustee, such new equipment notes to be substantially in the form contained in Section 2.01 of the Leased Aircraft Indenture (as such term is defined in the Note Purchase Agreement). Such new equipment notes will have the same payment terms except that in the event that the Owner enters into a Sale-/Leaseback Transaction relating prior to a property entered into within 180 days after December 31, 1999, Owner shall have the later of right to reoptimize the date of acquisition of such property new equipment notes to be issued to the Note Holders by the Company or a Restricted Subsidiary or owner trustee in compliance with the date of the completion of construction or commencement of full operations on such property, whichever is later;
(c) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of the Company or any Restricted Subsidiary (other than Funded Debt which by its terms or the terms of the instrument by which it was issued is subordinate in right of payment to the Notes) proceeds of the sale of such property, but only to the extent of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect of such Sale-Leaseback Transaction without equally and ratably securing the Notes;
(e) a Sale-Leaseback Transaction between the Company and any Restricted Subsidiary or among Restricted Subsidiaries, provided that the lessor shall be the Company or a wholly-owned Restricted Subsidiary; and
(f) a Sale-Leaseback Transaction which has a lease of no more than three years in lengthMandatory Economic Terms. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Owner shall not have the right to enter into a Sale-/Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transaction, provided unless the Owner causes to be delivered to the Indenture Trustee an opinion of counsel to the effect that the aggregate net sales proceeds from all Sale-Leaseback Transactions which are Note Holders will not Permitted Sale-Leaseback Transactionsrecognize income, together with all Indebtedness secured by Liens other than Permitted Liens, does not exceed 20% gain or loss for Federal income tax purposes as a result of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated such assumption and release and will be subject to Federal income tax in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determinationsame amounts, in the same manner and at the same time as would have been the case if such assumption and release had not occurred and that the Pass Through Trusts will not be subject to Federal in- come taxation as a result of such assumption and release. In addition, the Owner agrees to comply with Section 1(c) of the consolidated balance sheet contained or incorporated Note Purchase Agreement in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q.connection with any Sale/Leaseback Transaction. [This space intentionally left blank]
Appears in 1 contract
Sale-Leaseback Transactions. The Company shall Solely during an Unsecured Covenants period, the Lead Borrower will not, and shall will not permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-/Leaseback Transaction other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”Transaction, except the following:
(a) a the Sale-/Leaseback Transaction involving the leasing by the Company is solely with a Borrower or any another Restricted Subsidiary of model homes in the Company’s communitiesSubsidiary;
(b) the lease is for a Sale-Leaseback Transaction relating to a property entered into within 180 days after the later period not in excess of the date of acquisition of such property 36 months (or which may be terminated by the Company applicable Borrower or a Restricted Subsidiary or the date of the completion of construction or commencement of full operations on such propertySubsidiary), whichever is laterincluding renewals;
(c) a the Sale-/Leaseback Transaction where was entered into prior to the Company, Amendment and Restatement Effective Date;
(d) a Borrower or a Restricted Subsidiary within 365 days after the sale of such property in connection with such Sale-/Leaseback TransactionTransaction is completed, applies or causes to be applied an amount equal to the retirement of any Funded Debt of the Company or any Restricted Subsidiary (other than Funded Debt which by its terms or the terms of the instrument by which it was issued is subordinate in right of payment to the Notes) net proceeds of the sale of such property to (a) the repayment of Indebtedness hereunder, other Indebtedness ranked on a pari passu basis with the Indebtedness hereunder or Indebtedness of a Restricted Subsidiary, (b) the purchase, construction, development, expansion or improvement of property, but only to ; or (c) a combination thereof; or
(e) the extent Attributable Debt of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Borrowers and Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest Subsidiaries of the Sale-Leaseback Transaction) of the obligation for the net rental payments Lead Borrower in respect of such Sale-/Leaseback Transaction without equally and ratably securing all other Sale/Leaseback Transactions entered into after the Notes;
Amendment and Restatement Effective Date (e) a other than any such Sale-/Leaseback Transaction between the Company and any Restricted Subsidiary or among Restricted Subsidiaries, provided that the lessor shall as would be the Company or a wholly-owned Restricted Subsidiary; and
permitted as described in clauses (fa)-(d) a Sale-Leaseback Transaction which has a lease of no more than three years in length. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transaction, provided that the aggregate net sales proceeds from all Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactionsthis sentence), together with all the aggregate outstanding principal amount of Indebtedness of Subsidiaries permitted by Section 6.15(II)(b)(xviii) and the aggregate principal amount of the outstanding Indebtedness secured by Liens other than Permitted Liens, Xxxxx permitted by Section 6.16(II)(r) in an amount that does not exceed 20at any one time outstanding the greater of $1,688 million and 15% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q.Consolidated Net Tangible Assets.
Appears in 1 contract
Sale-Leaseback Transactions. The Company shall not, and shall not --------------------------- permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-Leaseback Transaction other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
(a) a Sale-Leaseback Transaction involving arrangement with any Person providing for the leasing by the Company and/or one or more Restricted Subsidiaries of any Principal Property (except for temporary leases for a term, including any renewal thereof, of not more than three years and except for leases between the Company and one or more Restricted Subsidiaries or between Restricted Subsidiaries) which property has been or is to be sold or transferred by the Company and/or such Restricted Subsidiary or Restricted Subsidiaries to such Person (a "Sale-Leaseback Transaction") unless (a) the Company and/or such -------------------------- Restricted Subsidiary or Restricted Subsidiaries would be entitled to incur Indebtedness secured by a Lien on such property without equally and ratably securing the Obligations pursuant to the provisions of model homes in the Company’s communities;
Section 9.01, or (b) a the ------------ Company shall apply or cause to be applied an amount equal to the Value of such Sale-Leaseback Transaction relating to a property entered into within 180 120 days after the later of the effective date of acquisition of such property by the Company or a Restricted Subsidiary or the date of the completion of construction or commencement of full operations on such property, whichever is later;
any arrangement (ci) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of Indebtedness for Borrowed Money incurred or assumed by the Company or any Restricted Subsidiary (other than Funded Debt indebtedness for borrowed money owed to the Company and/or one or more Restricted Subsidiaries) which by its terms matures on, or is extendable or renewable at the terms option of the instrument by obligor to, a date more than 12 months after the date of the incurrence or assumption of such indebtedness and which it was issued is subordinate senior in right of payment to, or ranks pari passu with, the Loans, or (ii) to the Notes) proceeds purchase of other property ---- ----- which will constitute "Principal Property" having a fair value in the opinion of the sale Board of Directors of the Company at least equal to the Value of such propertySale- Leaseback Transaction, but only or (c) the Company shall use the net proceeds to repay Loans hereunder. Notwithstanding the extent provisions of Sections 9.01 and 9.02, the Company and ------------- ---- any one or more of its Restricted Subsidiaries may nevertheless create or assume Liens which would otherwise require securing of the amount of proceeds so applied;
(d) a Obligations under said provisions, and enter into Sale-Leaseback Transaction where the Company Transactions without compliance with either Section 9.02(b) or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect of such Sale-Leaseback Transaction without equally and ratably securing the Notes;
(e) a Sale-Leaseback Transaction between the Company and any Restricted Subsidiary or among Restricted Subsidiaries, provided that the lessor shall be the Company or a wholly-owned Restricted Subsidiary; and
(f) a Sale-Leaseback Transaction which has a lease of no more than three years in length. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transaction9.02(c), provided that the aggregate net sales proceeds from amount of all -------------------------- -------- such Liens and Sale-Leaseback Transactions which are not Permitted Salepermitted by Section 9.02 of this ------------ Agreement and Section 8.02 of the Asset Disposition Bridge Facility, Capital ------------ Markets Bridge Facility, and 18-Leaseback Transactions, together with Month Revolver at any time outstanding (as measured by the sum of (a) all Indebtedness secured by all such Liens other than Permitted Liensthen outstanding or to be so created or assumed, does but excluding secured Indebtedness permitted under the exceptions in Section 9.01, and (b) the Value of all such ------------ Sale-Leaseback Transactions then outstanding or to be so entered into, but excluding such transactions in which indebtedness is retired or property is purchased or Loans under any of the Asset Disposition Bridge Facility or Capital Markets Bridge Facility are repaid, or, if no such amounts are outstanding, if Loans under this Agreement or the 18-Month Revolver are repaid) shall not exceed 2010% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q.Net Tangible Assets.
Appears in 1 contract
Sale-Leaseback Transactions. The Company shall not, and shall not --------------------------- permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-Leaseback Transaction other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
(a) a Sale-Leaseback Transaction involving arrangement with any Person providing for the leasing by the Company and/or one or more Restricted Subsidiaries of any Principal Property (except for temporary leases for a term, including any renewal thereof, of not more than three years and except for leases between the Company and one or more Restricted Subsidiaries or between Restricted Subsidiaries) which property has been or is to be sold or transferred by the Company and/or such Restricted Subsidiary or Restricted Subsidiaries to such Person (a "Sale-Leaseback Transaction") unless (a) the Company and/or such -------------------------- Restricted Subsidiary or Restricted Subsidiaries would be entitled to incur Indebtedness secured by a Lien on such property without equally and ratably securing the Obligations pursuant to the provisions of model homes in the Company’s communities;
Section 8.01, or (b) a the ------------ Company shall apply or cause to be applied an amount equal to the Value of such Sale-Leaseback Transaction relating to a property entered into within 180 120 days after the later of the effective date of acquisition of such property by the Company or a Restricted Subsidiary or the date of the completion of construction or commencement of full operations on such property, whichever is later;
any arrangement (ci) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of Indebtedness for Borrowed Money incurred or assumed by the Company or any Restricted Subsidiary (other than Funded Debt indebtedness for borrowed money owed to the Company and/or one or more Restricted Subsidiaries) which by its terms matures on, or is extendable or renewable at the terms option of the instrument by obligor to, a date more than 12 months after the date of the incurrence or assumption of such indebtedness and which it was issued is subordinate senior in right of payment to, or ranks pari passu with, the Loans, or (ii) to the Notes) proceeds purchase of other property ---- ----- which will constitute "Principal Property" having a fair value in the opinion of the sale Board of Directors of the Company at least equal to the Value of such propertySale- Leaseback Transaction, but only or (c) the Company shall use the net proceeds to repay Loans hereunder. Notwithstanding the extent provisions of Sections 8.01 and 8.02, the Company and ------------- ---- any one or more of its Restricted Subsidiaries may nevertheless create or assume Liens which would otherwise require securing of the amount of proceeds so applied;
(d) a Obligations under said provisions, and enter into Sale-Leaseback Transaction where the Company Transactions without compliance with either Section 8.02(b) or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect of such Sale-Leaseback Transaction without equally and ratably securing the Notes;
(e) a Sale-Leaseback Transaction between the Company and any Restricted Subsidiary or among Restricted Subsidiaries, provided that the lessor shall be the Company or a wholly-owned Restricted Subsidiary; and
(f) a Sale-Leaseback Transaction which has a lease of no more than three years in length. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transaction8.02(c), provided that the aggregate net sales proceeds from amount of all -------------------------- -------- such Liens and Sale-Leaseback Transactions which are not Permitted Salepermitted by Section 8.2 of this ----------- Agreement, Capital Markets Bridge Facility and 18-Leaseback Transactions, together with Month Revolver and Section ------- 9.02 of the Multi-Year Revolver at any time outstanding (as measured by the sum ---- of (a) all Indebtedness secured by all such Liens other than Permitted Liensthen outstanding or to be so created or assumed, does but excluding secured Indebtedness permitted under the exceptions in Section 8.01, and (b) the Value of all such Sale-Leaseback ------------ Transactions then outstanding or to be so entered into, but excluding such transactions in which indebtedness is retired or property is purchased or Loans are repaid) shall not exceed 2010% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q.Net Tangible Assets.
Appears in 1 contract
Sale-Leaseback Transactions. The Company shall not, and shall not permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-Leaseback Transaction other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
(a) a Sale-Leaseback Transaction involving the leasing by the Company or any Restricted Subsidiary of model homes in the Company’s (including its Subsidiaries’) communities;
(b) a Sale-Leaseback Transaction relating to a property entered into within 180 days after the later of the date of acquisition of such property by the Company or a Restricted Subsidiary or the date of the completion of construction or commencement of full operations on such property, whichever is later;
(c) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of the Company or any Restricted Subsidiary (other than Funded Debt which by its terms or the terms of the instrument by which it was issued is subordinate in right of payment to the Notes) proceeds of the sale of such property, but only to the extent of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect of such Sale-Leaseback Transaction without equally and ratably securing the Notes;
(e) a Sale-Leaseback Transaction between the Company and any Restricted Subsidiary or among Restricted Subsidiaries, provided that the lessor shall be the Company or a wholly-owned Restricted Subsidiary; and
(f) a Sale-Leaseback Transaction which has a lease of no more than three years in length. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transaction, provided that at the time of the Sale-Leaseback Transaction the aggregate net sales proceeds from all Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions, together with all Indebtedness secured by Liens other than Permitted Liens, does not exceed 20% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q.
Appears in 1 contract
Samples: Indenture (Lennar Corp /New/)
Sale-Leaseback Transactions. The Company shall not, and shall not permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-Leaseback Transaction other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “"Permitted Sale-Leaseback Transactions”":
(a1) a Sale-Leaseback Transaction involving the leasing by the Company or any Restricted Subsidiary of model homes in the Company’s 's communities;
(b2) a Sale-Leaseback Transaction relating to a property entered into within 180 days after the later of the date of acquisition of such property by the Company or a Restricted Subsidiary or the date of the completion of construction or commencement of full operations on such property, whichever is later;
(c3) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, Company applies or causes to be applied an amount equal to the net proceeds of such sale or transfer, within 365 days of receipt thereof, to the retirement or prepayment (other than any mandatory retirement or prepayment, except mandatory retirements or prepayments required as a result of any such Sale-Leaseback Transaction) of Funded Debt of the Company or any Restricted Subsidiary (other than Funded Debt which is not, by its terms or the terms of the instrument by which it was issued is issued, subordinate in right of payment to the Notes) proceeds of the sale of such property, but only to the extent of the amount of proceeds so applied;
(d4) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Supplemental Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect of such Sale-Leaseback Transaction without equally and ratably securing the Notes;
(e) a Sale-Leaseback Transaction between the Company and any Restricted Subsidiary or among Restricted Subsidiaries, provided that the lessor shall be the Company or a wholly-owned Restricted Subsidiary; and
(f) a Sale-Leaseback Transaction which has a lease of no more than three years in length. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transaction, provided that the aggregate net sales proceeds from all Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions, together with all Indebtedness secured by Liens other than Permitted Liens, does not exceed 20% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q.
Appears in 1 contract
Sale-Leaseback Transactions. The Company shall notAny single transaction or related series of transactions in which (i) Owner's interest in the Hotel is sold or transferred by the then-Owner ("Seller") to a buyer ("Buyer"), and (ii) the Buyer (as "landlord") leases the Hotel to the Seller (as "tenant"), is hereby defined as a "Sale/leaseback Transaction". With respect to each Sale/leaseback Transaction during the Term of this Agreement, the following provisions will apply: (a) the sale or transfer of the Hotel will be considered a Sale of the Hotel; however, the Seller (as tenant under the aforesaid lease), not the Buyer, shall thereafter be treated as the "Owner" for purposes of this Agreement; (b) the purchase price will not be a Secured Loan, but any mortgage financing placed (either at the time of the transaction or later) on the Buyer's interest in the Hotel will be treated as a Secured Loan, and the proceeds of each such Secured Loan will be aggregated with all outstanding Secured Loans, which encumber either the Buyer's interest in the Hotel or the Seller's leasehold interest in the Hotel, for purposes of determining whether a given Secured Loan qualifies as a Qualified Loan; (c) payments pursuant to such lease shall not permit any Restricted Subsidiary tobe treated as Deductions, after except for Impositions and similar items which would have been treated as Deductions in the date hereofabsence of such Sale/leaseback Transaction; and (d) all subsequent sales, transfers or assignments of either Buyer's interest in the Hotel or Seller's interest in the Hotel will be treated as Sales of the Hotel. Owner will not enter into any Sale-Leaseback /leaseback Transaction other than Permitted Sale-Leaseback Transactions (unless Management Company and the proposed Buyer have previously executed a mutually satisfactory attornment agreement pursuant to which, as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
(a) a Sale-Leaseback Transaction involving the leasing by the Company or any Restricted Subsidiary of model homes in the Company’s communities;
(b) a Sale-Leaseback Transaction relating to a property entered into within 180 days after the later of the date of acquisition the termination of Seller's leasehold interest, the provisions of this Agreement will (unless there has been an Event of Default or other event entitling either party to terminate this Agreement) be binding both on Management Company and on Buyer (as the successor "Owner"); such property by the Company or a Restricted Subsidiary or the date of the completion of construction or commencement of full operations on such property, whichever is later;
(c) a Saleattornment agreement will also contain an immediately-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of the Company or any Restricted Subsidiary (other than Funded Debt effective provision which by its terms or will incorporate the terms of the instrument by which it was issued is subordinate in right Section 6.08 of payment to the Notes) proceeds of the sale of such propertythis Agreement, but only to the extent of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, binding both on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect of such Sale-Leaseback Transaction without equally and ratably securing the Notes;
(e) a Sale-Leaseback Transaction between the Management Company and any Restricted Subsidiary or among Restricted Subsidiaries, provided that the lessor shall be the Company or a wholly-owned Restricted Subsidiary; and
(f) a Sale-Leaseback Transaction which has a lease of no more than three years in lengthon Buyer. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transaction, provided that the aggregate net sales proceeds from all Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions, together with all Indebtedness secured by Liens other than Permitted Liens, does not exceed 20% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q.END OF ARTICLE VI
Appears in 1 contract
Samples: Management Agreement (Desert Springs Marriott Limited Partnership)
Sale-Leaseback Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-/Leaseback Transaction with any Person (other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
(a) a Sale-Leaseback Transaction involving the leasing by the Company or any other Subsidiary) unless:
(i) the Company or such Restricted Subsidiary would be entitled to incur Funded Debt secured by Liens in a principal amount equal to the Attributable Indebtedness (treated as if such Attributable Indebtedness were Funded Debt) with respect to such Sale/Leaseback Transaction in accordance with Section 4.07; provided, however, that Attributable Indebtedness in respect of model homes any Sale/Leaseback Transaction entered into pursuant to this clause (i) shall not count against the amount of Funded Debt permitted under the Secured Debt Basket for any other purpose, including when determining the amount available thereunder for future Sale/Leaseback Transactions or any Funded Debt transactions; or
(ii) the Company or such Restricted Subsidiary receives proceeds from such Sale/Leaseback Transaction at least equal to the fair market value thereof (as determined in good faith by the Company’s communities;) and such proceeds are applied in accordance Section 4.09(b) or (c).
(b) The Company may apply Net Available Proceeds from a Sale-/Leaseback Transaction relating to a property entered into Transaction, within 180 365 days after following the later receipt of Net Available Proceeds from such Sale/Leaseback Transaction, to:
(i) the date repayment of acquisition Indebtedness of such property by the Company or a Restricted Subsidiary under Credit Facilities or the date other Senior Indebtedness, including any mandatory redemption or repurchase or make-whole redemption of the completion of construction Existing Notes or commencement of full operations on such property, whichever is later;
(c) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of the Company or any Restricted Subsidiary (other than Funded Debt which by its terms or the terms of the instrument by which it was issued is subordinate in right of payment to the Notes) proceeds of the sale of such property, but only to the extent of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect of such Sale-Leaseback Transaction without equally and ratably securing the Notes;
(eii) make an Investment in assets used in the Oil and Gas Business; or
(iii) develop by drilling the Company’s oil and gas reserves; provided, that the Company shall be deemed to have complied with clause (ii) or clause (iii) of this Section 4.09(b), as applicable, if, within 365 days of such Sale/Leaseback Transaction, the Company shall have commenced and not completed or abandoned an Investment or development within the scope of such clause (ii) or clause (iii), respectively, or shall have executed a binding agreement with respect to an Investment or development within the scope of such clause (ii) or clause (iii), respectively, and such Investment or development is substantially completed within a date one year and six months after the date of such Sale/Leaseback Transaction.
(c) If, upon completion of the 365-day period following the receipt of Net Available Proceeds from a Sale/Leaseback Transaction, any portion of the Net Available Proceeds from such Sale/Leaseback Transaction shall not have been applied by the Company as described in clauses (i), (ii) or (iii) of Section 4.09(b) and such remaining Net Available Proceeds, together with any remaining net cash proceeds from any prior Sale/Leaseback Transaction (such aggregate constituting “Excess Proceeds”), exceed $20.0 million, then the Company shall make an offer (the “Net Proceeds Offer”) to purchase the Notes and any other Senior Indebtedness in respect of which such an offer to purchase is also required to be made concurrently with the Net Proceeds Offer having an aggregate principal amount equal to the Excess Proceeds (such purchase to be made on a pro rata basis if the amount available for such repurchase is less than the principal amount of the Notes and other such Senior Indebtedness tendered in such Net Proceeds Offer) at a purchase price of 100% of the principal amount thereof plus accrued and unpaid interest thereon to, but excluding, the date of repurchase (the “Net Proceeds Purchase Price”). Upon the completion of such Net Proceeds Offer, the amount of Excess Proceeds shall be reset to zero.
(d) Within 15 days after the Company becomes obligated to make a Net Proceeds Offer (a “Net Proceeds Offer Triggering Event”), the Company shall send or cause to be sent to all Holders (with a copy to the Trustee) on the date of the Net Proceeds Offer Triggering Event a notice of the occurrence of such Net Proceeds Offer Triggering Event and of the Holders’ rights arising as a result thereof (the “Net Proceeds Offer Notice”). The Net Proceeds Offer Notice will state, among other things:
(1) that the Company is offering to purchase Notes pursuant to the provisions of this Indenture;
(2) that any Note (or any portion thereof) accepted for payment (and duly paid on the Net Proceeds Purchase Date) pursuant to the Net Proceeds Offer shall cease to accrue interest on the Net Proceeds Purchase Date;
(3) that any Notes (or portions thereof) not properly tendered will continue to accrue interest;
(4) the Net Proceeds Purchase Price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Net Proceeds Offer Notice is mailed (the “Net Proceeds Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a Sale-Leaseback Transaction between description of the Company procedure which Holders of Notes must follow in order to tender their Notes and any Restricted Subsidiary or among Restricted Subsidiaries, provided the procedures that the lessor shall be the Company or a wholly-owned Restricted SubsidiaryHolders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(f7) all other instructions and materials necessary to enable Holders of Notes to tender Notes pursuant to the Net Proceeds Offer.
(e) A Net Proceeds Offer will be deemed to have commenced upon sending of the Offer Notice for such Net Proceeds Offer and will terminate 20 Business Days after its commencement, unless a Sale-Leaseback Transaction which has longer offering period is required by law. Promptly after the termination of a lease of no more than three years in length. Notwithstanding the foregoingNet Proceeds Offer, the Company mayshall purchase and mail or deliver payment for all Notes tendered and accepted in response to such Net Proceeds Offer.
(f) The Company will comply, to the extent applicable, with the requirements 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 purchase of Notes as described above. To the extent that the provisions of any securities laws or regulations conflict with the provisions relating to a Net Proceeds Offer, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.09 by virtue thereof.
(g) Holders electing to have Notes purchased hereunder will be required to surrender such Notes at the address specified in the notice prior to the Net Proceeds Purchase Date. Holders will be entitled to withdraw their election to have their Notes purchased pursuant to this Section 4.09 if the Company receives, not later than one Business Day prior to the Net Proceeds Purchase Date, a telegram, telex, facsimile transmission or letter setting forth (i) the name of the Holder, (ii) the certificate number of the Note in respect of which such notice of withdrawal is being submitted, (iii) the principal amount of the Note (which shall be in minimum denominations of $2,000 or whole multiples of $1,000 in excess thereof) delivered for purchase by the Holder as to which his election is to be withdrawn, (iv) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased, and may permit (v) the principal amount, if any, of such Note (which shall be in minimum denominations of $2,000 or whole multiples of $1,000 in excess thereof) that remains subject to the original Net Proceeds Offer Notice and that has been or will be delivered for purchase by the Company.
(h) On the Net Proceeds Purchase Date, the Company shall, to the extent lawful, (i) accept for payment Notes or portions thereof tendered pursuant to the Net Proceeds Offer, (ii) not later than 1:00 p.m. (New York time) on the Net Proceeds Purchase Date, deposit with the Paying Agent an amount equal to the payment in respect of all Notes or portions thereof so tendered, and (iii) not later than 1:00 p.m. (New York time) on the Net Proceeds Purchase Date, deliver to the Paying Agent the Notes so accepted together with an Officers’ Certificate stating the Notes or portions thereof tendered to the Company. The Depositary, the Company or the Paying Agent shall promptly mail or deliver to each Holder of Notes so accepted payment in an amount equal to the Net Proceeds Purchase Price for such Notes, and the Trustee shall promptly authenticate and mail or deliver to each Holder new Notes of the applicable series equal in principal amount to any Restricted Subsidiary tounpurchased portion of the Notes surrendered, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transactionif any, provided that each such new Notes will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. Any Notes not so accepted shall be promptly mailed or delivered by the aggregate net sales proceeds from all Sale-Leaseback Transactions Paying Agent at the Company’s expense to the Holder thereof. For purposes of this Section 4.09, the Company shall choose a Paying Agent which are shall not Permitted Sale-Leaseback Transactionsbe the Company.
(i) The Trustee and the Paying Agent shall return to the Company, upon its request, any cash that remains unclaimed for two years after an Net Proceeds Purchase Date, together with all Indebtedness secured interest, if any, thereon (subject to Section 7.01(f) held by Liens other than Permitted Liens, does not exceed 20% them for the payment of the total consolidated stockholders’ equity Net Proceeds Purchase Price, as the case may be; and the Holder of such tendered and accepted Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash, and all liability of the Company as shown trustee thereof, shall thereupon cease; provided, however, that the Company shall cause to be published once in The New York Times and The Wall Street Journal (national edition) or send to each Holder entitled to such money notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining shall be repaid to the Company; provided, further however, that (x) to the extent that the aggregate amount of cash deposited by the Company with the Trustee in respect of a Net Proceeds Offer, as the case may be, exceeds the aggregate Net Proceeds Purchase Price of the Notes or portions thereof to be purchased, then the Trustee shall hold such excess for the Company and (y) unless otherwise directed by the Company in writing, promptly after the Business Day following the Net Proceeds Purchase Date, as the case may be, the Trustee shall return any such excess to the Company together with interest or dividends, if any, thereon (subject to Section 7.01(f)).
(j) Notes to be purchased shall, on the most recent consolidated balance sheet that is contained or incorporated Net Proceeds Purchase Date, become due and payable at the Net Proceeds Purchase Price, and from and after such date (unless the Company shall default in the latest annual report on Form 10-K (or equivalent reportpayment of the Net Proceeds Purchase Price) or quarterly report on Form 10-Q (or equivalent report) filed such Notes shall cease to bear interest. Such Net Proceeds Purchase Price shall be paid to such Holder promptly following the later of the Net Proceeds Purchase Date and the time of delivery of such Note to the relevant Paying Agent at the office of such Paying Agent by the Holder thereof in the manner required. Upon surrender of any such Note for purchase in accordance with the SECforegoing provisions, and such Note shall be paid by the Company at the Net Proceeds Purchase Price; provided, however, that installments of interest whose Stated Maturity is as of a date not more than 181 days on or prior to the date Net Proceeds Purchase Date shall be payable to the Person in whose name the Notes are registered as such on the relevant record dates according to the terms and the provisions of determination, Section 2.03; provided further in the case event the Excess Proceeds allocable to the Notes are less than the aggregate Net Proceeds Purchase Price of all Notes tendered for purchase, such Notes tendered for purchase shall be selected on a pro rata basis with such adjustments as may be appropriate by the Company so that only Notes in minimum denominations of $2,000 or whole multiples of $1,000 in excess thereof, shall be purchased. If any Note tendered for purchase shall not be so paid upon surrender thereof by deposit of funds with the Trustee or a Paying Agent in accordance with Section 4.09(h), the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Net Proceeds Purchase Date at the rate borne by such Note. Any Note that is to be purchased only in part shall be surrendered to a Paying Agent at the office of such Paying Agent (with, if the Company, the Registrar or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Registrar or the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Note, without service charge, one or more new Notes of the consolidated balance sheet contained or incorporated applicable series of any authorized denomination as requested by such Holder in an annual report on Form 10-Kaggregate principal amount equal to, or 135 days prior to and in exchange for, the date of determination, in the case portion of the consolidated balance sheet contained in principal amount of the quarterly report Note so surrendered that is not purchased. The Company shall publicly announce the results of the Net Proceeds Offer on Form 10-Q.or as soon as practicable after the Net Proceeds Purchase Date.
Appears in 1 contract
Sale-Leaseback Transactions. The Company shall not, and shall --------------------------- not permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-Leaseback Transaction other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
(a) a Sale-Leaseback Transaction involving arrangement with any Person providing for the leasing by the Company and/or one or more Restricted Subsidiaries of any Principal Property (except for temporary leases for a term, including any renewal thereof, of not more than three years and except for leases between the Company and one or more Restricted Subsidiaries or between Restricted Subsidiaries) which property has been or is to be sold or transferred by the Company and/or such Restricted Subsidiary or Subsidiaries to such Person (a "Sale-Leaseback Transaction") unless (a) the Company and/or such Restricted -------------------------- Subsidiary or Subsidiaries would be entitled to incur Indebtedness secured by a Lien on such property without equally and ratably securing the Obligations pursuant to the provisions of model homes in the Company’s communities;
Section 8.01, or (b) a the Company shall apply or ------------ cause to be applied an amount equal to the Value of such Sale-Leaseback Transaction relating to a property entered into within 180 120 days after the later of the effective date of acquisition of such property by the Company or a Restricted Subsidiary or the date of the completion of construction or commencement of full operations on such property, whichever is later;
any arrangement (ci) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of Indebtedness for Borrowed Money incurred or assumed by the Company or any Restricted Subsidiary (other than Funded Debt indebtedness for borrowed money owed to the Company and/or one or more Restricted Subsidiaries) which by its terms matures on, or is extendable or renewable at the terms option of the instrument by obligor to, a date more than 12 months after the date of the incurrence or assumption of such indebtedness and which it was issued is subordinate senior in right of payment to, or ranks pari passu ---- ----- with, the Loans, or (ii) to the Notes) proceeds purchase of other property which will constitute "Principal Property" having a fair value in the opinion of the sale Board of such property, but only to the extent Directors of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect Value of such Sale-Leaseback Transaction without equally Transaction, or (c) the Company shall use the net proceeds to repay Loans hereunder and ratably if all of the Loans have been repaid in full, to reduce the Aggregate Commitments hereunder. Notwithstanding the provisions of Sections 8.01 and 8.02, the Company ------------- ---- and any one or more of its Restricted Subsidiaries may nevertheless create or assume Liens which would otherwise require securing of the Notes;
(e) a Obligations under said provisions, and enter into Sale-Leaseback Transaction between the Company and any Restricted Subsidiary Transactions without compliance with either paragraph (b) or among Restricted Subsidiaries(c) of this Section 8.02, provided that the lessor shall be the Company or a wholly-owned Restricted Subsidiary; and
(f) a Sale-Leaseback Transaction which has a lease ------------- --- ------------ -------- aggregate amount of no more than three years in length. Notwithstanding the foregoing, the Company may, all such Liens and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transaction, provided that the aggregate net sales proceeds from all Sale-Leaseback Transactions which are not Permitted permitted by this Section 8.02 at any time outstanding (as measured by the sum of (a) all ------------ Indebtedness secured by all such Liens then outstanding or to be so created or assumed, but excluding secured Indebtedness permitted under the exceptions in Section 8.01, and (b) the Value of all such Sale-Leaseback TransactionsTransactions then ------------ outstanding or to be so entered into, together with all Indebtedness secured by Liens other than Permitted Liens, does but excluding such transactions in which indebtedness is retired or property is purchased or Loans are repaid) shall not exceed 2010% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q.Net Tangible Assets.
Appears in 1 contract
Sale-Leaseback Transactions. The Company shall not, and shall not permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-Leaseback Transaction other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
(a) a Sale-Leaseback Transaction involving arrangement with any Person providing for the leasing by the Company and/or one or more Restricted Subsidiaries of any Principal Property (except for temporary leases for a term, including any renewal thereof, of not more than three years and except for leases between the Company and one or more Restricted Subsidiaries or between Restricted Subsidiaries) which property has been or is to be sold or transferred by the Company and/or such Restricted Subsidiary or Restricted Subsidiaries to such Person (a "Sale-Leaseback Transaction") unless (a) the Company and/or such Restricted Subsidiary or Restricted Subsidiaries would be entitled to incur Indebtedness secured by a Lien on such property without equally and ratably securing the Obligations pursuant to the provisions of model homes in the Company’s communities;
Section 9.01, or (b) a the Company shall apply or cause to be applied an amount equal to the Value of such Sale-Leaseback Transaction relating to a property entered into within 180 120 days after the later of the effective date of acquisition of such property by the Company or a Restricted Subsidiary or the date of the completion of construction or commencement of full operations on such property, whichever is later;
any arrangement (ci) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of Indebtedness for Borrowed Money incurred or assumed by the Company or any Restricted Subsidiary (other than Funded Debt indebtedness for borrowed money owed to the Company and/or one or more Restricted Subsidiaries) which by its terms matures on, or is extendable or renewable at the terms option of the instrument by obligor to, a date more than 12 months after the date of the incurrence or assumption of such indebtedness and which it was issued is subordinate senior in right of payment to, or ranks pari passu with, the Loans, or (ii) to the Notes) proceeds purchase of other property which will constitute "Principal Property" having a fair value in the opinion of the sale Board of such property, but only to the extent Directors of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect Value of such Sale-Leaseback Transaction without equally Transaction, or (c) the Company shall use the net proceeds to repay Loans hereunder. Notwithstanding the provisions of Sections 9.01 and ratably securing the Notes;
(e) a Sale-Leaseback Transaction between 9.02, the Company and any one or more of its Restricted Subsidiary Subsidiaries may nevertheless create or among Restricted Subsidiariesassume Liens which would otherwise require securing of the Obligations under said provisions, provided that the lessor shall be the Company or a wholly-owned Restricted Subsidiary; and
(f) a and sf-712846 55 enter into Sale-Leaseback Transaction which has a lease of no more than three years in length. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real Transactions without compliance with either Section 9.02(b) or tangible personal property which is not a Permitted Sale-Leaseback Transaction9.02(c), provided that the aggregate net sales proceeds from amount of all such Liens and Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions, together with permitted by this Section 9.02 at any time outstanding (as measured by the sum of (a) all Indebtedness secured by all such Liens other than Permitted Liensthen outstanding or to be so created or assumed, does but excluding secured Indebtedness permitted under the exceptions in Section 9.01, and (b) the Value of all such Sale-Leaseback Transactions then outstanding or to be so entered into, but excluding such transactions in which indebtedness is retired or property is purchased or Loans are repaid) shall not exceed 2010% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q.Net Tangible Assets.
Appears in 1 contract
Sale-Leaseback Transactions. The Company shall will not, and shall will not permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-/Leaseback Transaction with any Person (other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”the Company or a Restricted Subsidiary) unless either:
(a) a Sale-Leaseback Transaction involving the leasing by the Company or any such Restricted Subsidiary of model homes would be entitled to incur Indebtedness, in a principal amount equal to the Company’s communities;Attributable Indebtedness with respect to such Sale/Leaseback Transaction, secured by a Lien on the property subject to such Sale/Leaseback Transaction pursuant to Section 4.04 hereof without equally and ratably securing the Notes pursuant to such Section 4.04; or
(b) a such Sale-/Leaseback Transaction relating to a property entered into occurs within 180 days after the later of from the date of acquisition of such property by the Company or a Restricted Subsidiary Principal Property or the date of the completion of construction or commencement of full operations on of such propertyPrincipal Property, whichever is later;; or
(c) after the Issue Date and within a period commencing six months prior to the consummation of such Sale-/Leaseback Transaction where and ending six months after the consummation thereof, the Company or a Restricted Subsidiary shall have expended for property used or to be used in the business of the Company and its Restricted Subsidiaries an amount equal to all or a portion of the net proceeds from such Sale/Leaseback Transaction and the Company shall have elected to designate such amount as a credit against such Sale/Leaseback Transaction (with any such amount not being so expended and so designated to be applied as set forth in Section 4.05(d) below); or
(d) the Company or a Restricted Subsidiary, during the 12-month period after the effective date of such Sale/Leaseback Transaction, shall have applied to the voluntary repayment, repurchase, redemption, defeasance or other acquisition or retirement ("retirement") of Notes, any Pari Passu Indebtedness, any Pari Passu Indebtedness of a Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor ("Retired Indebtedness") an amount equal to the greater of (i) the net proceeds of the sale or transfer of the property leased in such Sale/Leaseback Transaction and (ii) the fair value, as determined by the Board of Directors of the Company, within 365 days after of such property at the time of entering into such Sale-/Leaseback TransactionTransaction (in either case reduced to reflect the remaining term of the lease and any amount expended by the Company or a Restricted Subsidiary as set forth in Section 4.05(c) above), applies or causes to be applied less an amount equal to the retirement principal amount of such Retired Indebtedness voluntarily retired within such 12-month period and not designated as a credit against any Funded Debt of other Sale/Leaseback Transaction entered into by the Company or any Restricted Subsidiary (other than Funded Debt which by its terms or the terms of the instrument by which it was issued is subordinate in right of payment to the Notes) proceeds of the sale of during such property, but only to the extent of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect of such Sale-Leaseback Transaction without equally and ratably securing the Notes;
(e) a Sale-Leaseback Transaction between the Company and any Restricted Subsidiary or among Restricted Subsidiaries, provided that the lessor shall be the Company or a wholly-owned Restricted Subsidiary; and
(f) a Sale-Leaseback Transaction which has a lease of no more than three years in length. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transaction, provided that the aggregate net sales proceeds from all Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions, together with all Indebtedness secured by Liens other than Permitted Liens, does not exceed 20% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q.period.
Appears in 1 contract
Samples: Indenture (Ocean Energy Inc)
Sale-Leaseback Transactions. The Company shall not, and shall not permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-Leaseback Transaction other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
(a) a Sale-Leaseback Transaction involving arrangement with any Person providing for the leasing by the Company and/or one or more Restricted Subsidiaries of any Principal Property (except for temporary leases for a term, including any renewal thereof, of not more than three years and except for leases between the Company and one or more Restricted Subsidiaries or between Restricted Subsidiaries) which property has been or is to be sold or transferred by the Company and/or such Restricted Subsidiary or Restricted Subsidiaries to such Person (a “Sale-Leaseback Transaction”) unless (a) the Company and/or such Restricted Subsidiary or Restricted Subsidiaries would be entitled to incur Indebtedness secured by a Lien on such property without equally and ratably securing the Obligations pursuant to the provisions of model homes in the Company’s communities;
Section 9.01, or (b) a the Company shall apply or cause to be applied an amount equal to the Value of such Sale-Leaseback Transaction relating to a property entered into within 180 120 days after the later of the effective date of acquisition of such property by the Company or a Restricted Subsidiary or the date of the completion of construction or commencement of full operations on such property, whichever is later;
any arrangement (ci) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of Indebtedness for Borrowed Money incurred or assumed by the Company or any Restricted Subsidiary (other than Funded Debt indebtedness for borrowed money owed to the Company and/or one or more Restricted Subsidiaries) which by its terms matures on, or is extendable or renewable at the terms option of the instrument by obligor to, a date more than 12 months after the date of the incurrence or assumption of such indebtedness and which it was issued is subordinate senior in right of payment to, or ranks pari passu with, the Loans, or (ii) to the Notes) proceeds purchase of other property which will constitute “Principal Property” having a fair value in the opinion of the sale Board of such property, but only to the extent Directors of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect Value of such Sale-Leaseback Transaction without equally Transaction, or (c) the Company shall use the net proceeds to repay Loans hereunder. Notwithstanding the provisions of Sections 9.01 and ratably securing the Notes;
(e) a Sale-Leaseback Transaction between 9.02, the Company and any one or more of its Restricted Subsidiary Subsidiaries may nevertheless create or among Restricted Subsidiariesassume Liens which would otherwise require securing of the Obligations under said provisions, provided that the lessor shall be the Company or a wholly-owned Restricted Subsidiary; and
(f) a and enter into Sale-Leaseback Transaction which has a lease of no more than three years in length. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real Transactions without compliance with either Section 9.02(b) or tangible personal property which is not a Permitted Sale-Leaseback Transaction9.02(c), provided that the aggregate net sales proceeds from amount of all such Liens and Sale-Leaseback Transactions which are not Permitted Salepermitted by Section 9.02 of this Agreement and Section 8.02 of the Asset Disposition Bridge Facility, Capital Markets Bridge Facility, and 18-Leaseback Transactions, together with Month Revolver at any time outstanding (as measured by the sum of (a) all Indebtedness secured by all such Liens other than Permitted Liensthen outstanding or to be so created or assumed, does but excluding secured Indebtedness permitted under the exceptions in Section 9.01, and (b) the Value of all such Sale-Leaseback Transactions then outstanding or to be so entered into, but excluding such transactions in which indebtedness is retired or property is purchased or Loans under any of the Asset Disposition Bridge Facility or Capital Markets Bridge Facility are repaid, or, if no such amounts are outstanding, if Loans under this Agreement or the 18-Month Revolver are repaid) shall not exceed 2010% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q.Net Tangible Assets.
Appears in 1 contract
Sale-Leaseback Transactions. The Company shall notAny single transaction or related series of transactions in which (i) Owner's interest in the Hotel is sold or transferred by the then Owner ("Seller") to a buyer ("Buyer"), and (ii) the Buyer (as "landlord") leases the Hotel to the Seller (as "tenant"), is hereby defined as a "Sale/leaseback Transaction". With respect to each Sale/leaseback Transaction during the Term of this Agreement, the following provisions will apply: (a) the sale or transfer of the Hotel will be considered a Sale of the Hotel; however, the Seller (as tenant under the aforesaid lease), not the Buyer, shall thereafter be treated as the "Owner" for purposes of this Agreement; (b) the purchase price will not be a Secured Loan, but any mortgage financing placed (either at the time of the transaction or later) on the Buyer's interest in the Hotel will be treated as a Secured Loan, and the proceeds of each such Secured Loan will be aggregated with all outstanding Secured Loans, which encumber either the Buyer's interest in the Hotel or the Seller's leasehold interest in the Hotel, for purposes of determining whether a given Secured Loan qualifies as a Qualified Loan; (c) payments pursuant to such lease shall not permit any Restricted Subsidiary tobe treated as Deductions, after except for Impositions and similar items which would have been treated as Deductions in the date hereofabsence of such Sale/leaseback Transaction; and (d) all subsequent sales, transfers or assignments of either Buyer's interest in the Hotel or Seller's interest in the Hotel will be treated as Sales of the Hotel. Owner will not enter into any Sale-Leaseback /leaseback Transaction other than Permitted Sale-Leaseback Transactions (unless Management Company and the proposed Buyer have previously executed a mutually satisfactory attornment agreement pursuant to which, as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
(a) a Sale-Leaseback Transaction involving the leasing by the Company or any Restricted Subsidiary of model homes in the Company’s communities;
(b) a Sale-Leaseback Transaction relating to a property entered into within 180 days after the later of the date of acquisition the termination of Seller's leasehold interest, the provisions of this Agreement will (unless there has been an Event of Default or other event entitling either party to terminate this Agreement) be binding both on Management Company and on Buyer (as the successor "Owner"); such property by the Company or a Restricted Subsidiary or the date of the completion of construction or commencement of full operations on such property, whichever is later;
(c) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of the Company or any Restricted Subsidiary (other than Funded Debt attornment agreement will also contain an immediately- effective provision which by its terms or will incorporate the terms of the instrument by which it was issued is subordinate in right Section 6.08 of payment to the Notes) proceeds of the sale of such propertythis Agreement, but only to the extent of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, binding both on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect of such Sale-Leaseback Transaction without equally and ratably securing the Notes;
(e) a Sale-Leaseback Transaction between the Management Company and any Restricted Subsidiary or among Restricted Subsidiaries, provided that the lessor shall be the Company or a wholly-owned Restricted Subsidiary; and
(f) a Sale-Leaseback Transaction which has a lease of no more than three years in lengthon Buyer. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transaction, provided that the aggregate net sales proceeds from all Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions, together with all Indebtedness secured by Liens other than Permitted Liens, does not exceed 20% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q.END OF ARTICLE VI
Appears in 1 contract
Sale-Leaseback Transactions. The Company shall notAny single transaction or related series of transactions in which (i) Owner's interest in the Retirement Community is sold or transferred by the then Owner ("Seller") to a buyer ("Buyer"), and (ii) the Buyer (as "landlord") leases the Retirement Community to the Seller (as "tenant"), is hereby defined as a "Sale/leaseback Transaction". With respect to each Sale/leaseback Transaction during the Term of this Agreement, the following provisions will apply: (a) the sale or transfer of the Retirement Community will be considered a Sale of the Retirement Community; however, the Seller (as tenant under the aforesaid lease), not the Buyer, shall thereafter be treated as the "Owner" for purposes of this Agreement; (b) the purchase price will not be a Secured Loan, but any mortgage financing placed (either at the time of the transaction or later) on the Buyer's interest in the Retirement Community will be treated as a Secured Loan, and the proceeds of each such Secured Loan will be aggregated with all outstanding Secured Loans, which encumber either the Buyer's interest in the Retirement Community or the Seller's leasehold interest in the Retirement Community, for purposes of determining whether a given Secured Loan qualifies as a Qualified Loan; (c) payments pursuant to such lease shall not permit any Restricted Subsidiary tobe treated as Operating Expenses, after except for Impositions and similar items which would have been treated as Operating Expenses in the date hereofabsence of such Sale/leaseback Transaction; and (d) all subsequent sales, transfers or assignments of either Buyer's interest in the Retirement Community or Seller's interest in the Retirement Community will be treated as Sales of the Retirement Community. Owner will not enter into any Sale-Leaseback /leaseback Transaction other than Permitted Sale-Leaseback Transactions (unless Operator and the proposed Buyer have previously executed a mutually satisfactory attornment agreement pursuant to which, as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
(a) a Sale-Leaseback Transaction involving the leasing by the Company or any Restricted Subsidiary of model homes in the Company’s communities;
(b) a Sale-Leaseback Transaction relating to a property entered into within 180 days after the later of the date of acquisition the termination of Seller's leasehold interest, the provisions of this Agreement will (unless there has been an Event of Default or other event entitling either party to terminate this Agreement) be binding both on Operator and on Buyer (as the successor "Owner"); such property by the Company or a Restricted Subsidiary or the date of the completion of construction or commencement of full operations on such property, whichever is later;
(c) a Saleattornment agreement will also contain an immediately-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of the Company or any Restricted Subsidiary (other than Funded Debt effective provision which by its terms or will incorporate the terms of the instrument by which it was issued is subordinate in right Section 6.06 of payment to the Notes) proceeds of the sale of such propertythis Agreement, but only to the extent of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, binding both on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect of such Sale-Leaseback Transaction without equally Operator and ratably securing the Notes;
(e) a Sale-Leaseback Transaction between the Company and any Restricted Subsidiary or among Restricted Subsidiaries, provided that the lessor shall be the Company or a wholly-owned Restricted Subsidiary; and
(f) a Sale-Leaseback Transaction which has a lease of no more than three years in length. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transaction, provided that the aggregate net sales proceeds from all Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions, together with all Indebtedness secured by Liens other than Permitted Liens, does not exceed 20% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q.Buyer.
Appears in 1 contract
Sale-Leaseback Transactions. The Company Notwithstanding anything to the contrary contained herein or any other Operative Agreement, upon not less than _ days prior written notice to the parties hereto, the Owner shall not, have the right to sell the Aircraft and transfer title to the Aircraft to an owner trustee for the benefit of an owner participant (which shall not permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-Leaseback Transaction other than Permitted Sale-Leaseback Transactions be a "Transferee" (as defined belowin the form of Leased Aircraft Participation Agreement (as such term is defined in the Note Purchase Agreement)) in a transaction in which such owner trustee 52 -48- assumes all of the obligations of the Owner under the Equipment Notes and the Trust Indenture on a non-recourse basis (with the Owner being released from such obligations, except to the extent accrued prior thereto), leases the Aircraft to the Owner and assigns such lease to the Mortgagee pursuant to an amended and restated trust indenture (a "Sale/Leaseback Transaction"). The following In connection with such Sale/Leaseback Transaction, each of the parties hereto and each Note Holder will execute and deliver appropriate documentation permitting the owner trustee to assume the obligations of the Owner under the Equipment Notes and the Trust Indenture on a non-recourse basis, releasing the Owner from all obligations in respect of the Equipment Notes and the Trust Indenture (except to the extent accrued prior thereto), and take all other actions as are reasonably necessary to permit such assumption by the owner trustee. In connection with any such Sale/Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
Transaction, the parties agree that (a) the documents to be utilized shall be (i) an amended and restated participation agreement amending and restating the Participation Agreement, such amended and restated participation agreement to be substantially in the form of the Leased Aircraft Participation Agreement (as such term is defined in the Note Purchase Agreement), among the parties hereto, any Note Holder which is not a Sale-Leaseback Transaction involving party hereto and the leasing owner trustee and owner participant, with (x) such changes to such form to reflect the assumption of the Equipment Notes by the Company or any Restricted Subsidiary owner trustee on a non-recourse basis rather than the issuance thereof by the owner trustee and purchase thereof by the Pass Through Trustee and also to reflect the release of model homes the Owner from all obligations under the Equipment Notes and the Trust Indenture (except to the extent accrued prior thereto) and (y) such other changes as may be permitted in accordance with the Note Purchase Agreement applicable to the revision of the Leased Aircraft Participation Agreement in connection with a leveraged lease transaction, (ii) a lease agreement, such lease agreement to be substantially in the Company’s communities;
form of the Lease (as such term is defined in the Note Purchase Agreement), between the Owner and the owner trustee with such changes as may be permitted in accordance with the provisions of the Note Purchase Agreement applicable to the revision of the Lease in connection with a leveraged lease transaction, (iii) an amended and restated trust indenture amending and restating the Trust Indenture, such amended and restated trust indenture to be substantially in the form of the Leased Aircraft Indenture (as such term is defined in the Note Purchase Agreement), between the owner trustee and the Indenture Trustee, with (x) such changes to such form to reflect the assumption of all of the obligations of the Owner under the Equipment Notes and the Trust Indenture on a non-recourse basis and the release of the obligations of the Owner under the Equipment Notes and the Trust Indenture and (y) such other changes as may be permitted in accordance with the Note Purchase Agreement applicable to the revision of the Leased Aircraft Indenture in connection with a leveraged lease transaction, a (iv) purchase agreement assignment, such purchase agreement assignment to be substantially in the form of the Aircraft Purchase Agreement Assignment (as such term is defined in the Note Purchase Agreement) between the Owner and the owner trustee with such changes as may be permitted in accordance with the provisions of the Note Purchase Agreement applicable to the Aircraft Purchase Agreement Assignment in connection with a leveraged lease transaction, and (v) a trust agreement, such trust agreement to be substantially in the form of the Leased Aircraft Trust Agreement (as such term is defined in the Note Purchase Agreement), between the owner trustee and the owner participant with such changes as may be permitted in accordance with the provisions of the Note Purchase Agreement applicable to the Leased Aircraft Trust Agreement in connection with a leveraged lease transaction and (b) the Equipment Notes shall be delivered to the Indenture Trustee for cancellation in exchange for new equipment notes to be issued to the Note Holders by the owner trustee, such new equipment notes to be substantially in the form contained in Section 2.01 of the Leased Aircraft Indenture (as such term is defined in the Note Purchase Agreement). Such new equipment notes will have the same payment terms except that in the event that the Owner enters into a Sale-/Leaseback Transaction relating prior to a property entered into within 180 days after July 2, 2001, Owner shall have the later of right to reoptimize the date of acquisition of such property new equipment notes to be issued to the Note Holders by the Company or a Restricted Subsidiary or owner trustee in compliance with the date of the completion of construction or commencement of full operations on such property, whichever is later;
(c) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of the Company or any Restricted Subsidiary (other than Funded Debt which by its terms or the terms of the instrument by which it was issued is subordinate in right of payment to the Notes) proceeds of the sale of such property, but only to the extent of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect of such Sale-Leaseback Transaction without equally and ratably securing the Notes;
(e) a Sale-Leaseback Transaction between the Company and any Restricted Subsidiary or among Restricted Subsidiaries, provided that the lessor shall be the Company or a wholly-owned Restricted Subsidiary; and
(f) a Sale-Leaseback Transaction which has a lease of no more than three years in lengthMandatory Economic Terms. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Owner shall not have the right to enter into a Sale-/Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transaction, provided unless the Owner either (i) causes to be delivered to the Indenture Trustee an opinion of counsel to the effect that the aggregate net sales proceeds from all Sale-Leaseback Transactions which are Note Holders will not Permitted Sale-Leaseback Transactionsrecognize income, together with all Indebtedness secured by Liens other than Permitted Liens, does not exceed 20% gain or loss for Federal income tax purposes as a result of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated such assumption and release and will be subject to Federal income tax in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determinationsame amounts, in the same manner and at the same time as would have been the case if such assumption and release had not occurred and that the Pass Through Trusts will not be subject to Federal income taxation as a result of such assumption and release or (ii) agrees to provide indemnification to the Note Holders in form and substance reasonably satisfactory to the Mortgagee. In addition, in connection with any Sale/Leaseback Transaction the Owner agrees to (i) comply with Section 1(c) of the consolidated balance sheet contained or incorporated Note Purchase Agreement and (ii) obtain from Standard & Poor's a confirmation that such Sale/Leaseback Transaction would not result in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case (x) a reduction of the consolidated balance sheet contained in rating for any Class of Certificates below the quarterly report on Form 10-Q.then current rating for such Class of Certificates or (y) a withdrawal or suspension of the rating of any Class of Certificates. [This space intentionally left blank]
Appears in 1 contract
Sale-Leaseback Transactions. The Company shall Lead Borrower will not, and shall will not permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-/Leaseback Transaction other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”Transaction, except the following:
(a) a the Sale-/Leaseback Transaction involving the leasing by the Company is solely with a Borrower or any Restricted Subsidiary of model homes in the Company’s communitiesanother Subsidiary;
(b) the lease is for a Sale-Leaseback Transaction relating to a property entered into within 180 days after the later period not in excess of the date of acquisition of such property 36 months (or which may be terminated by the Company applicable Borrower or a Restricted Subsidiary or the date of the completion of construction or commencement of full operations on such propertySubsidiary), whichever is laterincluding renewals;
(c) a the Sale-/Leaseback Transaction where was entered into prior to the Company, Amendment and Restatement Effective Date;
(d) a Borrower or a Subsidiary within 365 days after the sale of such property in connection with such Sale-/Leaseback TransactionTransaction is completed, applies or causes to be applied an amount equal to the retirement of any Funded Debt of the Company or any Restricted Subsidiary (other than Funded Debt which by its terms or the terms of the instrument by which it was issued is subordinate in right of payment to the Notes) net proceeds of the sale of such property to (a) the repayment of Indebtedness hereunder, other Indebtedness ranked on a pari passu basis with the Indebtedness hereunder or Indebtedness of a Subsidiary, (b) the purchase, construction, development, expansion or improvement of property, but only to ; or (c) a combination thereof; or
(e) the extent Attributable Debt of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest Borrowers and Subsidiaries of the Sale-Leaseback Transaction) of the obligation for the net rental payments Lead Borrower in respect of such Sale-Sale/ Leaseback Transaction without equally and ratably securing all other Sale/Leaseback Transactions entered into after the Notes;
Amendment and Restatement Effective Date (e) a other than any such Sale-/Leaseback Transaction between the Company and any Restricted Subsidiary or among Restricted Subsidiaries, provided that the lessor shall as would be the Company or a wholly-owned Restricted Subsidiary; and
permitted as described in clauses (fa)-(d) a Sale-Leaseback Transaction which has a lease of no more than three years in length. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transaction, provided that the aggregate net sales proceeds from all Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactionsthis sentence), together with all the aggregate outstanding principal amount of Indebtedness of Subsidiaries permitted by Section 6.14(b)(xviii) and the aggregate principal amount of the outstanding Indebtedness secured by Liens other than Permitted Liens, permitted by Section 6.15(r) in an amount that does not exceed 20at any one time outstanding the greater of $1,688 million and 15% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q.Consolidated Net Tangible Assets.
Appears in 1 contract
Sale-Leaseback Transactions. The Company shall notAny single transaction or related series of transactions in which (i) Owner's interest in the Inn is sold or transferred by the then Owner ("Seller") to a buyer ("Buyer"), and (ii) the Buyer (as "landlord") leases the Inn to the Seller (as "tenant"), is hereby defined as a "Sale/Leaseback Transaction". With respect to each Sale/Leaseback Transaction during the Term of this Agreement, the following provisions will apply: (a) the sale or transfer of the Inn will be considered a Sale of the Inn; however, the Seller (as tenant under the aforesaid lease), not the Buyer, shall thereafter be treated as the "Owner" for purposes of this Agreement; (b) the purchase price will not be a Secured Loan, but any mortgage financing placed (either at the time of the transaction or later) on the Buyer's interest in the Inn will be treated as a Secured Loan, and the proceeds of each such Secured Loan will be aggregated with all outstanding Secured Loans, which encumber either the Buyer's interest in the Inn or the Seller's leasehold interest in the Inn, for purposes of determining whether a given Secured Loan qualifies as a Qualified Loan; (c) payments pursuant to such lease shall not permit any Restricted Subsidiary tobe treated as Deductions, after except for Impositions and similar items which would have been treated as Deductions in the date hereofabsence of such Sale/Leaseback Transaction; and (d) all subsequent sales, transfers or assignments of either Buyer's interest in the Inn or Seller's interest in the Inn will be treated as Sales of the Inn. Owner will not enter into any Sale-/Leaseback Transaction other than Permitted Sale-Leaseback Transactions (unless Management Company and the proposed Buyer have previously executed a mutually satisfactory attornment agreement pursuant to which, as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
(a) a Sale-Leaseback Transaction involving the leasing by the Company or any Restricted Subsidiary of model homes in the Company’s communities;
(b) a Sale-Leaseback Transaction relating to a property entered into within 180 days after the later of the date of acquisition the termination of Seller's leasehold interest, the provisions of this Agreement will (unless there has been an Event of Default or other event entitling either party to terminate this Agreement) be binding both on Management Company and on Buyer (as the successor "Owner"); such property by the Company or a Restricted Subsidiary or the date of the completion of construction or commencement of full operations on such property, whichever is later;
(c) a Saleattornment agreement will also contain an immediately-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of the Company or any Restricted Subsidiary (other than Funded Debt effective provision which by its terms or will incorporate the terms of the instrument by which it was issued is subordinate in right Section 6.8 of payment to the Notes) proceeds of the sale of such propertythis Agreement, but only to the extent of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, binding both on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect of such Sale-Leaseback Transaction without equally and ratably securing the Notes;
(e) a Sale-Leaseback Transaction between the Management Company and any Restricted Subsidiary or among Restricted Subsidiaries, provided that the lessor shall be the Company or a wholly-owned Restricted Subsidiary; and
(f) a Sale-Leaseback Transaction which has a lease of no more than three years in length. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transaction, provided that the aggregate net sales proceeds from all Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions, together with all Indebtedness secured by Liens other than Permitted Liens, does not exceed 20% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q.Buyer.
Appears in 1 contract
Samples: Management Agreement (Hospitality Properties Trust)
Sale-Leaseback Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-/Leaseback Transaction with any Person (other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
(a) a Sale-Leaseback Transaction involving the leasing by the Company or any other Subsidiary) unless:
(i) the Company or such Restricted Subsidiary would be entitled to incur Funded Debt secured by Liens in a principal amount equal to the Attributable Indebtedness (treated as if such Attributable Indebtedness were Funded Debt) with respect to such Sale/Leaseback Transaction in accordance with Section 4.07; provided, however, that Attributable Indebtedness in respect of model homes any Sale/Leaseback Transaction entered into pursuant to this clause (i) shall not count against the amount of Funded Debt permitted under the Secured Debt Basket for any other purpose, including when determining the amount available thereunder for future Sale/Leaseback Transactions or any Funded Debt transactions; or
(ii) the Company or such Restricted Subsidiary receives proceeds from such Sale/Leaseback Transaction at least equal to the fair market value thereof (as determined in good faith by the Company’s communities;) and such proceeds are applied in accordance Section 4.09(b).
(b) The Company may apply Net Available Proceeds from a Sale-/Leaseback Transaction relating to a property entered into Transaction, within 180 365 days after following the later receipt of Net Available Proceeds from such Sale/Leaseback Transaction, to:
(i) the date repayment of acquisition Indebtedness of such property by the Company or a Restricted Subsidiary under Credit Facilities or the date other Senior Indebtedness, including any mandatory redemption or repurchase or make-whole redemption of the completion of construction Existing Notes or commencement of full operations on such property, whichever is later;
(c) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of the Company or any Restricted Subsidiary (other than Funded Debt which by its terms or the terms of the instrument by which it was issued is subordinate in right of payment to the Notes) proceeds of the sale of such property, but only to the extent of the amount of proceeds so applied;
(d) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect of such Sale-Leaseback Transaction without equally and ratably securing the Notes;
(eii) make an Investment in assets used in the Oil and Gas Business; or
(iii) develop by drilling the Company’s oil and gas reserves; provided, that the Company shall be deemed to have complied with clause (ii) or clause (iii) of this Section 4.09(b), as applicable, if, within 365 days of such Sale/Leaseback Transaction, the Company shall have commenced and not completed or abandoned an Investment or development within the scope of such clause (ii) or clause (iii), respectively, or shall have executed a binding agreement with respect to an Investment or development within the scope of such clause (ii) or clause (iii), respectively, and such Investment or development is substantially completed within a date one year and six months after the date of such Sale/Leaseback Transaction.
(c) If, upon completion of the 365-day period following the receipt of Net Available Proceeds from a Sale/Leaseback Transaction, any portion of the Net Available Proceeds from such Sale/Leaseback Transaction shall not have been applied by the Company as described in clauses (i), (ii) or (iii) of Section 4.09(b) and such remaining Net Available Proceeds, together with any remaining net cash proceeds from any prior Sale/Leaseback Transaction (such aggregate constituting “Excess Proceeds”), exceed $20.0 million, then the Company shall make an offer (the “Net Proceeds Offer”) to purchase the Notes and any other Senior Indebtedness in respect of which such an offer to purchase is also required to be made concurrently with the Net Proceeds Offer having an aggregate principal amount equal to the Excess Proceeds (such purchase to be made on a pro rata basis if the amount available for such repurchase is less than the principal amount of the Notes and other such Senior Indebtedness tendered in such Net Proceeds Offer) at a purchase price of 100% of the principal amount thereof plus accrued interest thereon to the date of repurchase (the “Net Proceeds Purchase Price”). Upon the completion of such Net Proceeds Offer, the amount of Excess Proceeds shall be reset to zero.
(d) Within 15 days after the Company becomes obligated to make a Net Proceeds Offer (a “Net Proceeds Offer Triggering Event”), the Company shall send or cause to be sent to all Holders on the date of the Net Proceeds Offer Triggering Event a notice of the occurrence of such Net Proceeds Offer Triggering Event and of the Holders’ rights arising as a result thereof (the “Net Proceeds Offer Notice”). The Net Proceeds Offer Notice will state, among other things:
(1) that the Company is offering to purchase Notes pursuant to the provisions of this Indenture;
(2) that any Note (or any portion thereof) accepted for payment (and duly paid on the Net Proceeds Purchase Date) pursuant to the Net Proceeds Offer shall cease to accrue interest on the Net Proceeds Purchase Date;
(3) that any Notes (or portions thereof) not properly tendered will continue to accrue interest;
(4) the Net Proceeds Purchase Price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Net Proceeds Offer Notice is mailed (the “Net Proceeds Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a Sale-Leaseback Transaction between description of the Company procedure which Holders of Notes must follow in order to tender their Notes and any Restricted Subsidiary or among Restricted Subsidiaries, provided the procedures that the lessor shall be the Company or a wholly-owned Restricted SubsidiaryHolders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(f7) all other instructions and materials necessary to enable Holders of Notes to tender Notes pursuant to the Net Proceeds Offer.
(e) A Net Proceeds Offer will be deemed to have commenced upon sending of the Offer Notice for such Net Proceeds Offer and will terminate 20 Business Days after its commencement, unless a Sale-Leaseback Transaction which has longer offering period is required by law. Promptly after the termination of a lease of no more than three years in length. Notwithstanding the foregoingNet Proceeds Offer, the Company mayshall purchase and mail or deliver payment for all Notes tendered and accepted in response to such Net Proceeds Offer.
(f) The Company will comply, to the extent applicable, with the requirements 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 purchase of Notes as described above. To the extent that the provisions of any securities laws or regulations conflict with the provisions relating to a Net Proceeds Offer, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.09 by virtue thereof.
(g) Holders electing to have Notes purchased hereunder will be required to surrender such Notes at the address specified in the notice prior to the Net Proceeds Purchase Date. Holders will be entitled to withdraw their election to have their Notes purchased pursuant to this Section 4.09 if the Company receives, not later than one Business Day prior to the Net Proceeds Purchase Date, a telegram, telex, facsimile transmission or letter setting forth (i) the name of the Holder, (ii) the certificate number of the Note in respect of which such notice of withdrawal is being submitted, (iii) the principal amount of the Note (which shall be $1,000 or whole multiples of $1,000 in excess thereof) delivered for purchase by the Holder as to which his election is to be withdrawn, (iv) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased, and may permit (v) the principal amount, if any, of such Note (which shall be $1,000 or whole multiples of $1,000 in excess thereof) that remains subject to the original Net Proceeds Offer Notice and that has been or will be delivered for purchase by the Company.
(h) On the Net Proceeds Purchase Date, the Company shall, to the extent lawful, (i) accept for payment Notes or portions thereof tendered pursuant to the Net Proceeds Offer, (ii) not later than 1:00 p.m. (New York time) on the Net Proceeds Purchase Date, deposit with the Paying Agent an amount equal to the payment in respect of all Notes or portions thereof so tendered, and (iii) not later than 1:00 p.m. (New York time) on the Net Proceeds Purchase Date, deliver to the Paying Agent the Notes so accepted together with an Officers’ Certificate stating the Notes or portions thereof tendered to the Company. The Depositary, the Company or the Paying Agent shall promptly mail or deliver to each Holder of Notes so accepted payment in an amount equal to the Net Proceeds Purchase Price for such Notes, and the Trustee shall promptly authenticate and mail or deliver to each Holder new Notes equal in principal amount to any Restricted Subsidiary tounpurchased portion of the Notes surrendered, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transactionif any, provided that each such new Notes will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. Any Notes not so accepted shall be promptly mailed or delivered by the aggregate net sales proceeds from all Sale-Leaseback Transactions Paying Agent at the Company’s expense to the Holder thereof. For purposes of this Section 4.09, the Company shall choose a Paying Agent which are shall not Permitted Sale-Leaseback Transactionsbe the Company.
(i) The Trustee and the Paying Agent shall return to the Company, upon its request, any cash that remains unclaimed for two years after an Net Proceeds Purchase Date, together with all Indebtedness secured interest, if any, thereon (subject to Section 7.01(f) held by Liens other than Permitted Liens, does not exceed 20% them for the payment of the total consolidated stockholders’ equity Net Proceeds Purchase Price, as the case may be; and the Holder of such tendered and accepted Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash, and all liability of the Company as shown trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company cause to be published once in The New York Times and The Wall Street Journal (national edition) or send to each Holder entitled to such money notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining shall be repaid to the Company; provided, further however, that (x) to the extent that the aggregate amount of cash deposited by the Company with the Trustee in respect of a Net Proceeds Offer, as the case may be, exceeds the aggregate Net Proceeds Purchase Price of the Notes or portions thereof to be purchased, then the Trustee shall hold such excess for the Company and (y) unless otherwise directed by the Company in writing, promptly after the Business Day following the Net Proceeds Purchase Date, as the case may be, the Trustee shall return any such excess to the Company together with interest or dividends, if any, thereon (subject to Section 7.01(f)).
(j) Notes to be purchased shall, on the most recent consolidated balance sheet that is contained or incorporated Net Proceeds Purchase Date, become due and payable at the Net Proceeds Purchase Price, and from and after such date (unless the Company shall default in the latest annual report on Form 10-K (or equivalent reportpayment of the Net Proceeds Purchase Price) or quarterly report on Form 10-Q (or equivalent report) filed such Notes shall cease to bear interest. Such Net Proceeds Purchase Price shall be paid to such Holder promptly following the later of the Net Proceeds Purchase Date and the time of delivery of such Note to the relevant Paying Agent at the office of such Paying Agent by the Holder thereof in the manner required. Upon surrender of any such Note for purchase in accordance with the SECforegoing provisions, and such Note shall be paid by the Company at the Net Proceeds Purchase Price; provided, however, that installments of interest whose Stated Maturity is as of a date not more than 181 days on or prior to the date Net Proceeds Purchase Date shall be payable to the Person in whose name the Notes are registered as such on the relevant record dates according to the terms and the provisions of determination, Section 2.03; provided further in the case event the Excess Proceeds allocable to a particular series of Notes are less than the aggregate Net Proceeds Purchase Price of all Notes of such series tendered for purchase, such Notes tendered for purchase shall be selected on a pro rata basis with such adjustments as may be appropriate by the Trustee so that only Notes in denominations of $1,000 or whole multiples of $1,000 in excess thereof, shall be purchased. If any Note tendered for purchase shall not be so paid upon surrender thereof by deposit of funds with the Trustee or a Paying Agent in accordance with Section 4.09(h), the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Net Proceeds Purchase Date at the rate borne by such Note. Any Note that is to be purchased only in part shall be surrendered to a Paying Agent at the office of such Paying Agent (with, if the Company, the Registrar or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Registrar or the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Note, without service charge, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case principal amount of the consolidated balance sheet contained in Note so surrendered that is not purchased. The Company shall publicly announce the quarterly report results of the Net Proceeds Offer on Form 10-Q.or as soon as practicable after the Net Proceeds Purchase Date.
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Sale-Leaseback Transactions. The Company shall not, and shall not --------------------------- permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-Leaseback Transaction other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
(a) a Sale-Leaseback Transaction involving arrangement with any Person providing for the leasing by the Company and/or one or more Restricted Subsidiaries of any Principal Property (except for temporary leases for a term, including any renewal thereof, of not more than three years and except for leases between the Company and one or more Restricted Subsidiaries or between Restricted Subsidiaries) which property has been or is to be sold or transferred by the Company and/or such Restricted Subsidiary or Restricted Subsidiaries to such Person (a "Sale-Leaseback Transaction") unless (a) the Company and/or such -------------------------- Restricted Subsidiary or Restricted Subsidiaries would be entitled to incur Indebtedness secured by a Lien on such property without equally and ratably securing the Obligations pursuant to the provisions of model homes in the Company’s communities;
Section 8.01, or (b) a the ------------ Company shall apply or cause to be applied an amount equal to the Value of such Sale-Leaseback Transaction relating to a property entered into within 180 120 days after the later of the effective date of acquisition of such property by the Company or a Restricted Subsidiary or the date of the completion of construction or commencement of full operations on such property, whichever is later;
any arrangement (ci) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to the retirement of any Funded Debt of Indebtedness for Borrowed Money incurred or assumed by the Company or any Restricted Subsidiary (other than Funded Debt indebtedness for borrowed money owed to the Company and/or one or more Restricted Subsidiaries) which by its terms matures on, or is extendable or renewable at the terms option of the instrument by obligor to, a date more than 12 months after the date of the incurrence or assumption of such indebtedness and which it was issued is subordinate senior in right of payment to, or ranks pari passu with, the Loans, or (ii) to the Notes) proceeds purchase of other property ---- ----- which will constitute "Principal Property" having a fair value in the opinion of the sale Board of Directors of the Company at least equal to the Value of such propertySale- Leaseback Transaction, but only or (c) the Company shall use the net proceeds to repay Loans hereunder. Notwithstanding the extent provisions of Sections 8.01 and 8.02, the Company and ------------- ---- any one or more of its Restricted Subsidiaries may nevertheless create or assume Liens which would otherwise require securing of the amount of proceeds so applied;
(d) a Obligations under said provisions, and enter into Sale-Leaseback Transaction where the Company Transactions without compliance with either Section 8.02(b) or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect of such Sale-Leaseback Transaction without equally and ratably securing the Notes;
(e) a Sale-Leaseback Transaction between the Company and any Restricted Subsidiary or among Restricted Subsidiaries, provided that the lessor shall be the Company or a wholly-owned Restricted Subsidiary; and
(f) a Sale-Leaseback Transaction which has a lease of no more than three years in length. Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transaction8.02(c), provided that the aggregate net sales proceeds from amount of all -------------------------- -------- such Liens and Sale-Leaseback Transactions which are not Permitted Salepermitted by Section 8.2 of this ----------- Agreement, the Asset Disposition Bridge Facility, and 18-Leaseback Transactions, together with Month Revolver and Section 9.02 of the Multi-Year Revolver at any time outstanding (as measured by ------------ the sum of (a) all Indebtedness secured by all such Liens other than Permitted Liensthen outstanding or to be so created or assumed, does but excluding secured Indebtedness permitted under the exceptions in Section 8.01, and (b) the Value of all such Sale-Leaseback ------------ Transactions then outstanding or to be so entered into, but excluding such transactions in which indebtedness is retired or property is purchased or Loans are repaid) shall not exceed 2010% of the total consolidated stockholders’ equity of the Company as shown on the most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated balance sheet contained in the quarterly report on Form 10-Q.Net Tangible Assets.
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