Common use of Debt Offer Clause in Contracts

Debt Offer. (a) The Company shall commence, on any date designated by Purchaser after 14 days following the date hereof and on at least five Business Days prior written notice to the Company, an offer to purchase all of the outstanding aggregate principal amount of the Company’s 9 5/8 % Senior Subordinated Notes due 2012 (the “Notes”) on the terms and conditions set forth in Section 4.05(a) of the Company Disclosure Schedule (or as otherwise may be agreed between in writing by the Company and Purchaser) and such other customary terms and conditions as are reasonably acceptable to Purchaser and the Company (including the related Consent Solicitation (as defined below), the “Debt Offer”); provided that (A) this Agreement shall not have been terminated in accordance with Section 8.01, and (B) at the time of such commencement, Purchaser shall have otherwise performed or complied in all material respects with all of its agreements and covenants required by this Agreement to be performed on or prior to the time that the Debt Offer is to be commenced. Following the commencement of the Debt Offer, the Company shall make such changes to the terms and conditions of the Debt Offer as may be reasonably requested in writing by Purchaser; provided that the Company shall not be required to (i) increase the price per Note payable unless advised in writing by the dealer manager of the Debt Offer that such increase is advisable to successfully complete the Debt Offer, (ii) remove the condition that the Merger shall have been consummated or the condition that there shall be no order or injunction prohibiting consummation of the Debt Offer or (iii) make any binding commitment by the Company or any Company Subsidiary unless such commitment is either conditioned on the Closing or terminates without liability to the Company or any Company Subsidiary. Following the commencement of the Debt Offer, the Company shall not, without the written consent of Purchaser, waive any condition to the Debt Offer or make any changes to the terms and conditions of the Debt Offer, in either case, that would have a material and adverse effect on Purchaser or the Surviving Corporation or the Financing except as otherwise agreed in writing between Purchaser and the Company. If Purchaser advises the Company in writing that, in its reasonable judgment based on the advice of the dealer manager of the Debt Offer, there is a significant possibility that the Requisite Consent will not be obtained and preparations should be made to defease the Notes, the Company shall use commercially reasonable efforts to make such preparations, and if the Requisite Consent is not timely received, the Company shall defease the Notes in connection with and at the time of the Merger; provided, however, that the Company shall not be required to defease the Notes or provide any irrevocable notice regarding such defeasance unless (i) such action is taken simultaneously with the Merger being consummated and (ii) Purchaser shall have deposited, or caused to be deposited, the amount of funds necessary to effect such defeasance as provided and calculated in accordance with the terms of the Indenture. If there is more than one dealer manager for the Debt Offer, the term dealer manager as used in this Section 4.06(a) shall refer to the lead dealer manager of the Debt Offer.

Debt Offer. At the Closing, the Company shall (a) The Company shall commence, on any date designated by Purchaser after 14 days following the date hereof and on at least five Business Days prior written notice to the Company, an offer to purchase all of the outstanding aggregate principal amount of the Company’s 9 5/8 % Senior Subordinated Notes due 2012 accept for payment (the “Notes”) on the terms and conditions set forth in Section 4.05(a) of the Company Disclosure Schedule (or as otherwise may be agreed between in writing by the Company and Purchaser) and such other customary terms and conditions as are reasonably acceptable to Purchaser and the Company (including the related Consent Solicitation (as defined below), the “Debt Offer”); provided that (A) this Agreement shall not have been terminated in accordance with Section 8.01, and (B) at the time of such commencement, Purchaser shall have otherwise performed or complied in all material respects with all of its agreements and covenants required by this Agreement funds to be performed advanced or contributed by Parent) all Notes validly tendered and not withdrawn on or prior to the time that date of Closing pursuant to the Debt Offer, subject to the satisfaction or waiver of all conditions to the Debt Offer; and (b) if Parent has not delivered to the Company a written request to commence the Debt Offer and Consent Solicitation pursuant to the first sentence of Section 6.18(a) (and has not itself commenced the Debt Offer and the Consent Solicitation), or withdraws such request after it is given, or the Debt Offer is not consummated because a condition thereto has not been satisfied (provided that Parent has provided the documentation contemplated by Section 6.18(b)), (A) mail or cause to be commenced. Following mailed a notice of redemption (the commencement “Notice of Redemption”) to the holders of the Debt OfferNotes in accordance with Sections 3.03 and 3.07(c) of the Notes Indenture and Section 5(c) of the Notes, (B) irrevocably deposit (with funds to be advanced or contributed by Parent) the Company shall make such changes Indenture Discharge Amount in trust with the Indenture Trustee pursuant to Section 11.01 of the Notes Indenture, (C) deliver to the terms and conditions Indenture Trustee irrevocable instructions to apply such deposited funds toward the payment of the Debt Offer as may redemption price for the Notes on the redemption date specified in the Notice of Redemption in accordance with Section 11.02 of the Notes Indenture, (D) deliver to the Indenture Trustee the officers’ certificate and opinion of counsel (which opinion shall be reasonably requested provided by Parent) specified in Section 12.04 of the Notes Indenture, and (E) request in writing by Purchaser; provided that the Company Indenture Trustee acknowledge in writing the discharge of the Notes and the Notes Indenture with respect to the Notes (the “Acknowledgment”); provided, that any failure of the Indenture Trustee to provide the Acknowledgment shall not be required to (i) increase the price per Note payable unless advised in writing by the dealer manager of the Debt Offer that such increase is advisable to successfully complete the Debt Offer, (ii) remove the condition that the Merger shall have been consummated or the condition that there shall be no order or injunction prohibiting consummation of the Debt Offer or (iii) make any binding commitment constitute a breach by the Company or any Company Subsidiary unless such commitment is either conditioned on the Closing or terminates without liability to the Company or any Company Subsidiary. Following the commencement of the Debt Offer, the Company shall not, without the written consent of Purchaser, waive any condition to the Debt Offer or make any changes to the terms and conditions of the Debt Offer, in either case, that would have a material and adverse effect on Purchaser or the Surviving Corporation or the Financing except as otherwise agreed in writing between Purchaser and the Company. If Purchaser advises the Company in writing that, in its reasonable judgment based on the advice of the dealer manager of the Debt Offer, there is a significant possibility that the Requisite Consent will not be obtained and preparations should be made to defease the Notes, the Company shall use commercially reasonable efforts to make such preparations, and if the Requisite Consent is not timely received, the Company shall defease the Notes in connection with and at the time of the Merger; provided, however, that the Company shall not be required to defease the Notes or provide any irrevocable notice regarding such defeasance unless (i) such action is taken simultaneously with the Merger being consummated and (ii) Purchaser shall have deposited, or caused to be deposited, the amount of funds necessary to effect such defeasance as provided and calculated in accordance with the terms of the Indenture. If there is more than one dealer manager for the Debt Offer, the term dealer manager as used in this Section 4.06(a) shall refer to the lead dealer manager of the Debt Offer3.5.

Debt Offer. (a) The At such time as requested by Holding and Acquisition Sub (provided that Holding and Acquisition Sub shall coordinate with the Company regarding such timing), the Company shall commence, on any date designated by Purchaser after 14 days following the date hereof and on at least five Business Days prior written notice to the Company, commence an offer to purchase all purchase, accompanied by related solicitations of consent regarding covenant amendments to the Indenture to permit the consummation of the outstanding aggregate principal amount Merger and the other transactions contemplated hereby without breach or default of the Company’s 9 5/8 % Indenture or the terms of the Senior Subordinated Notes due 2012 (the “Notes”) on the terms and conditions set forth in Section 4.05(a) of the Company Disclosure Schedule (or as otherwise may be agreed between in writing by the Company and Purchaser) and such other customary terms and conditions as are reasonably acceptable to Purchaser and the Company (including the related Consent Solicitation (as defined below), the Company’s outstanding 10 ¼% senior subordinated notes due 2007 (the “Senior Subordinated Notes”), on such terms and conditions as are in accordance with the Indenture, applicable law and otherwise reasonably acceptable to Holding and Acquisition Sub, in the exercise of their reasonable judgment; provided that the price so offered for the purchase of the Senior Subordinated Notes (the “Tender Price”) shall be no less than the redemption price for such Senior Subordinated Notes in effect on the date hereof as provided in the Indenture (the “Debt Offer”); provided that (A) this Agreement . The Company shall not have been terminated in accordance with Section 8.01, and (B) at waive any of the time of such commencement, Purchaser shall have otherwise performed or complied in all material respects with all of its agreements and covenants required by this Agreement conditions to be performed on or prior to the time that the Debt Offer is to be commenced. Following the commencement of the Debt Offer, the Company shall and make such any other changes to in the terms and conditions of the Debt Offer as may be reasonably requested in writing by Purchaser; provided that the Company shall not be required to (i) increase the price per Note payable unless advised in writing by the dealer manager of the Debt Offer that such increase is advisable to successfully complete the Debt OfferHolding and Acquisition Sub, (ii) remove the condition that the Merger shall have been consummated or the condition that there shall be no order or injunction prohibiting consummation of the Debt Offer or (iii) make any binding commitment by the Company or any Company Subsidiary unless such commitment is either conditioned on the Closing or terminates without liability to the Company or any Company Subsidiary. Following the commencement of the Debt Offer, and the Company shall not, without the written consent of PurchaserHolding’s and Acquisition Sub’s prior consent, which shall not be unreasonably withheld or delayed, waive any material condition to the Debt Offer Offer, or make any changes to the terms and conditions of the Debt Offer. Notwithstanding the foregoing, in either case, Holding agrees that would have a material and adverse effect on Purchaser or the Surviving Corporation or the Financing except as otherwise agreed in writing between Purchaser and without the Company. If Purchaser advises ’s prior consent the transactions contemplated by the Debt Offer shall not be consummated, and in connection therewith no amounts shall be payable by the Company to the holders of Senior Subordinated Notes in writing connection with such Debt Offer, pursuant to any offer to purchase or consent solicitation or otherwise (unless Holding provides an undertaking to reimburse the Company for any amounts so paid), unless the Merger has been consummated. In connection therewith, the Company covenants and agrees that, in its reasonable judgment based on subject to the advice terms and conditions of this Agreement, including but not limited to the dealer manager of terms and conditions to the Debt Offer, there is a significant possibility that the Requisite Consent it will not be obtained accept for payment, and preparations should be made to defease the Notespay for, the Company shall use commercially reasonable efforts to make such preparationsSenior Subordinated Notes contemporaneously with, and if the Requisite Consent is not timely receivedcontingent upon, the Company shall defease the Notes in connection with and at the time of the Merger; provided, however, that the Company shall not be required to defease the Notes or provide any irrevocable notice regarding such defeasance unless (i) such action is taken simultaneously with the Merger being consummated and (ii) Purchaser shall have deposited, or caused to be deposited, the amount of funds necessary to effect such defeasance as provided and calculated in accordance with the terms of the Indenture. If there is more than one dealer manager for the Debt Offer, the term dealer manager as used in this Section 4.06(a) shall refer to the lead dealer manager of the Debt OfferEffective Time.