Company Notes. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, at the sole election of Parent, either Parent or the Company shall commence promptly, but in any event no later than the fifth Business Day, following the date that the Proxy Statement is first mailed to the Company’s shareholders as contemplated by Section 6.1(a) hereof or on any other date determined by Parent and consented to by the Company (which consent shall not be unreasonably withheld or delayed), offers to purchase, and related consent solicitations to eliminate or modify certain covenants and provisions in the applicable Indenture (as defined below) relating to, all of the outstanding aggregate principal amount of the Company’s 8-3/8% Senior Subordinated Notes due 2012 (the “2012 Notes”) and 8-1/4% Senior Notes Due 2008 (the “2008 Notes”, and together with the 2012 Notes, the “Notes”) on the terms and conditions set forth in one or more offers to purchase, letters of transmittal and other related documents (collectively, the “Debt Offer Documents”), each in form and substance determined by Parent and reasonably satisfactory to the Company (the “Debt Offers”). The parties agree that, and the Debt Offer Documents shall reflect that, consummation of the Debt Offers shall be conditioned on (i) receipt of valid and unrevoked consents from holders of a majority in aggregate principal amount of each series of outstanding Notes (the “Consent Condition”), (ii) the execution and delivery of the supplemental indentures referred to in Section 6.10(b) by the applicable trustee, (iii) the consummation of the Merger and (iv) the satisfaction of other customary conditions to be set forth in the Debt Offer Documents. The Company (i) shall waive any of the conditions to the Debt Offers (other than that the Merger shall have been consummated) and make any change to the terms and conditions (other than that the Merger shall have been consummated) of the Debt Offers as may be reasonably requested by Parent and (ii) shall not, without the prior written consent of Parent, waive any condition to the Debt Offers or make any changes to the terms and conditions of the Debt Offers. Notwithstanding the immediately preceding sentence, and subject to the terms and conditions set forth in the Debt Offer Documents, the Company shall not be required to amend the terms and conditions of the Debt Offers pursuant to instructions from Parent if such amendment would decrease the price per a...
Company Notes. Each of the Company, Parent and Sub shall take each action required to be taken by such party pursuant to the Indenture dated as of January 18, 1996, between the Company and Citibank, N.A., with respect to the Company Notes, as necessary to consummate the Merger and the other transactions contemplated by this Agreement in compliance therewith.
Company Notes. The consent of requisite holders of the 2022 Notes and, if applicable, the 2018 Notes necessary to effect the amendments to the 2022 Indenture and, if applicable, the 2018 Indenture contemplated by the Consent Solicitation Documents shall have been received pursuant to the Consent Solicitation, there shall be no Default (as defined in the 2022 Indenture) in respect of the 2022 Indenture or the 2022 Notes and, if any 2018 Notes are outstanding, no Default (as defined in the 2018 Indenture) in respect of the 2018 Indenture or the 2018 Notes, and the consummation of the Transactions, including the Merger, and the Debt Financing and/or the Alternative Financing, alone shall not give rise to any fact, event, circumstance or effect that with notice or lapse of time would constitute a Default or a Change of Control (in each case, as defined in the 2022 Indenture) in respect of the 2022 Indenture or the 2022 Notes or, if any 2018 Notes are outstanding, a Default or a Change of Control (in each case, as defined in the 2018 Indenture) in respect of the 2018 Indenture or the 2018 Notes.
Company Notes. From the date of this Agreement, at Parent’s written request and at Parent’s sole expense, the Company shall use its commercially reasonable efforts to (a) effect the repurchase or redemption of the Company Notes from the holders thereof at or after the Effective Time, including the delivery of any and all notices required by the terms of the Indenture in connection with such repurchase or redemption, and/or (b) solicit consents from the holders of the Company Notes regarding any amendment, conditioned upon the Closing and effective as of the Effective Time, of certain covenants in the Indenture. Prior to taking any of the foregoing actions, the Company shall consult and cooperate with, and obtain the written consent of, Parent with respect to, the action and the intended manner and form thereof.
Company Notes. The Company shall comply with its obligations under the Company Notes Indenture that arise as a result of the execution, delivery or performance by the Company of this Agreement and the consummation of the transactions contemplated hereby, including the delivery of any notices, certificates and opinions required in connection with the transactions contemplated hereby.
Company Notes. As of immediately prior to the Effective Time, subject to the consummation of the Merger and without any action on the part of Acquiror, Merger Sub, the Company or the Company Holders, each Company Note (unless otherwise converted), upon the terms and subject to the conditions set forth in this Section 1.9(a)(iv) and throughout this Agreement, including the holdback provisions set forth herein, shall be cancelled and extinguished, and each holder thereof shall be entitled to receive, as payment in full satisfaction of the Company’s obligations thereunder, upon execution and delivery by the applicable Company Noteholder of a Note Cancellation Agreement with respect to such Company Note, in substantially the form attached hereto as Exhibit K (a “Note Cancellation Agreement”), an amount in cash equal to the aggregate amount payable with respect to such Company Note in accordance with the terms of such Company Note upon a Change of Control ( as defined in the Company Notes) on the Closing Date, including the prepayment premium described in paragraph 1(c)(ii) of the Company Notes. For purposes of calculating the amount to be paid to each Company Noteholder at the Effective Time, the amounts described in this Section 1.9(a)(iv) shall be calculated assuming that the Total Merger Consideration is equal to the Initial Merger Consideration, and shall be adjusted following the Closing as set forth herein. The aggregate amount to be paid to any Company Noteholder with respect to any outstanding Company Note held immediately prior to the Effective Time shall be rounded down to the nearest whole cent. At the Effective Time, all Company Notes shall be cancelled or terminated, and no Company Noteholder shall have the right to receive any security or other consideration from the Company, Acquiror or the Surviving Corporation with respect thereto. Acquiror shall not assume or convert any Company Notes, and no Company Note shall be deemed to be outstanding or to have any rights other than those set forth in this Section 1.9(a) after the Effective Time. The aggregate amount of cash payable with respect to all such Company Notes under this Section 1.9(a)(iv) is referred to as the “Note Consideration”.
Company Notes. Upon written request of Parent, the Company shall, and shall cause the Company Subsidiaries to, as applicable, (i) execute and deliver, or cause to be executed and delivered, in each case, to the trustee under the Company Indenture at or prior to the Closing Effective Time, such documents or instruments as are required to comply with the requirements of Sections 5.01, 11.04 and 11.05 of the Company Base Indenture applicable to each series of the Company’s outstanding senior notes (the “Company Notes”) in connection with the First Merger and/or the Second Merger, and (ii) provide all assistance reasonably requested by Parent in connection with obtaining the execution of such instruments by the other parties required to execute such instruments and take any other actions reasonably requested by Parent (which shall not require any payment by the Company or the Company Subsidiaries) that are customary or necessary in connection therewith, including the execution and delivery by the Company, the Company Subsidiaries or their Representatives (as applicable) of customary officers’ certificates, supplemental indentures and legal opinions, respectively, to the trustee under the Company Indenture, to the extent such certificates, supplemental indentures and opinions are required thereby. Notwithstanding the foregoing, neither Company nor the Company Subsidiaries shall be required to execute and deliver any document or instrument (or cause any document or instrument to be executed or delivered) (i) that would be inaccurate in light of the facts and circumstances at the time delivered, or (ii) not conditioned on or delivered substantially concurrently with the occurrence of the Closing Effective Time.
Company Notes. 37 3.32 Disclosure.....................................................37
Company Notes. At the Effective Time, Parent shall assume the due and punctual performance of all of the terms and conditions of each outstanding Company Note and each such Company Note shall, unless the conversion rights thereunder have previously expired, become convertible into the number of New Securities (as defined in the Company Notes) of Parent and at such Conversion Price (as defined in the Company Notes) as set forth therein. The “Company Notes” shall be the convertible promissory notes made by the Company listed in Section 2.01(f) of the Company Disclosure Schedule. The parties acknowledge that certain of the Company Notes automatically will convert, at the closing price of Parent Common Stock on the date hereof, to the right to receive Parent Common Stock at the Effective Time.
Company Notes. Each Company Note being purchased pursuant to this Agreement, in the form attached hereto as Exhibit A-1 or Exhibit A-2, respectively, shall have been duly executed and delivered by the Company.”
(l) Section 7 (as renumbered) is hereby amended replacing each reference to “Notes” with a reference to “Company Notes” with such grammatical changes as necessary to reflect such amended references.
(m) The heading to Exhibit A to the Agreement is hereby amended by replacing the words “Exhibit A” with the language “Exhibit A-1.
(n) A new Exhibit A-2, the Line of Credit Note, is hereby added as Exhibit A-2 to the Agreement, in the form attached to this Amendment as Exhibit A.
(o) Exhibit B to the Agreement is hereby deleted in its entirety and replaced with the form of Warrant attached as Exhibit B to this Amendment.
