Common use of FUNDAMENTAL CHANGE OFFER Clause in Contracts

FUNDAMENTAL CHANGE OFFER. (A) Upon the occurrence of a Fundamental Change, each Noteholder shall have the right to require that the Issuer purchase such Noteholder’s Notes at a purchase price in cash equal to one hundred and one percent (101%) of the principal amount thereof on the date of purchase plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on the Regular Record Date to receive interest due on the relevant Interest Payment Date). (B) Within thirty (30) days following any Fundamental Change, unless the Issuer has exercised its option to redeem all the Notes pursuant to Article III hereof and Article III of the Base Indenture, the Issuer shall mail (or, if the Notes are held in the form of one or more Global Securities, deliver electronically) a notice to each Noteholder with a copy to the Trustee (the “Fundamental Change Offer”) stating: (i) that a Fundamental Change has occurred and that such Noteholder has the right to require the Issuer to purchase such Noteholder’s Notes at a purchase price in cash equal to one hundred and one percent (101%) of the principal amount thereof on the date of purchase, plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Noteholders of record on the Regular Record Date to receive interest on the relevant Interest Payment Date); (ii) the circumstances and relevant facts regarding such Fundamental Change, at a minimum to include: (a) a description of material developments in the Issuer’s business subsequent to the date of the latest of the financial statements (including a description of the events requiring the Issuer to make the Fundamental Change Offer), and (b) if applicable, appropriate pro forma financial information (including pro forma historical income, cash flow and capitalization, in each case after giving effect to such Fundamental Change) and the events requiring the Issuer to make the Fundamental Change Offer; (iii) the purchase date (which shall be no earlier than thirty (30) days nor later than sixty (60) days from the date such notice is mailed or electronically delivered); (iv) the instructions, as determined by the Issuer, consistent with this Section 4.01, that a Noteholder must follow in order to have its Notes purchased; (v) that a Holder may tender all or any portion of its Notes, subject to the requirement that any portion of a Note tendered must be in a minimum denomination of $2,000 in principal amount or in a principal amount denomination of any integral multiple of $1,000 in excess thereof; (vi) the place or places where Notes are to be surrendered for tender pursuant to the Fundamental Change Offer; (vii) each Holder electing to tender a Note pursuant to the Fundamental Change Offer will be required to surrender such Note at the place or places specified in the offer prior to the close of business on the expiration date (such Note being, if the Issuer or the Trustee so requires, duly endorsed or accompanied by a duly executed written instrument of transfer); (viii) interest on any Note not tendered, or tendered but not purchased by the Issuer pursuant to the Fundamental Change Offer, will continue to accrue; (ix) on the purchase date the purchase price will become due and payable on each Note accepted for purchase, and interest on Notes purchased will cease to accrue on and after the purchase date; (x) Holders are entitled to withdraw tendered Notes (in a minimum denomination of $2,000 in principal amount or in a principal amount denomination of any integral multiple of $1,000 in excess thereof) by giving notice, which must be received by the Issuer or the Trustee not later than the close of business on the applicable expiration date, setting forth the name of the Holder, the principal amount of the tendered Notes, the certificate number of the tendered Notes and a statement that the Holder is withdrawing all or a portion of the tender; (xi) if any Note is purchased in part, new Notes equal in principal amount to the unpurchased portion of the Note will be issued; and (xii) if any Note contains a CUSIP or ISIN number, no representation is being made as to the correctness of the CUSIP or ISIN number either as printed on the Notes or as contained in the offer and that the Holder should rely only on the other identification numbers printed on the Notes. Prior to the purchase date, the Issuer will accept tendered Notes for purchase as required by the Fundamental Change Offer and deliver to the Trustee all Notes so accepted together with an Officer’s Certificate specifying which Notes have been accepted for purchase. On the purchase date, the purchase price will become due and payable on each Note accepted for purchase, and interest on Notes purchased will cease to accrue on and after the purchase date. The Trustee will promptly return to Holders any Notes not accepted for purchase and send to Holders new Notes equal in principal amount to any unpurchased portion of any Notes accepted for purchase in part. The Issuer will not be required to make a Fundamental Change Offer following a Fundamental Change if (x) a third party makes the Fundamental Change Offer in the manner, at the times and otherwise in compliance with the requirements set forth herein applicable to a Fundamental Change Offer made by the Issuer and purchases all Notes validly tendered and not withdrawn under such Fundamental Change Offer; or (y) the Issuer has exercised the Issuer’s option to redeem all the Notes pursuant to Article III hereof and Article III of the Base Indenture. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Notes as a result of a Fundamental Change. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.01, the Issuer will comply with the applicable securities laws and regulations and shall not be deemed to have breached the Issuer’s obligations under this Section 4.01 by virtue of the Issuer’s compliance with such securities laws or regulations. Notwithstanding anything to the contrary in the Indenture, the Notes or the Guaranties, a Fundamental Change Offer may be made in advance of a Change of Control, or conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of such Fundamental Change Offer. (C) Notwithstanding anything to the contrary in the Indenture, the Notes or the Guaranties, the provisions under the Indenture relative to the Issuer’s obligation to make an offer to purchase the Notes as a result of a Fundamental Change may be waived or modified with the written consent of the Holders of a majority in principal amount of the Notes.

FUNDAMENTAL CHANGE OFFER. (A) Upon the occurrence of a Fundamental Change, each Noteholder shall have the right to require that the Issuer purchase such Noteholder’s Notes at a purchase price in cash equal to one hundred and one percent (101%) of the principal amount thereof on the date of purchase plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on the Regular Record Date to receive interest due on the relevant Interest Payment Date). (B) Within thirty (30) days following any Fundamental Change, unless the Issuer has exercised its option to redeem all the Notes pursuant to Article III hereof and Article III of the Base Indenture, the Issuer shall mail (or, if the Notes are held in the form of one or more Global Securities, deliver electronically) electronically a notice to each Noteholder with a copy to the Trustee (the “Fundamental Change Offer”) stating: (i) that a Fundamental Change has occurred and that such Noteholder has the right to require the Issuer to purchase such Noteholder’s Notes at a purchase price in cash equal to one hundred and one percent (101%) of the principal amount thereof on the date of purchase, plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Noteholders of record on the Regular Record Date to receive interest on the relevant Interest Payment Date); (ii) the circumstances and relevant facts regarding such Fundamental Change, at a minimum to include: (a) a description of material developments in the Issuer’s business subsequent to the date of the latest of the financial statements (including a description of the events requiring the Issuer to make the Fundamental Change Offer), and (b) if applicable, appropriate pro forma financial information (including pro forma historical income, cash flow and capitalization, in each case after giving effect to such Fundamental Change) and the events requiring the Issuer to make the Fundamental Change Offer; (iii) the purchase date (which shall be no earlier than thirty (30) days nor later than sixty (60) days from the date such notice is mailed or electronically delivered); (iv) the instructions, as determined by the Issuer, consistent with this Section 4.01, that a Noteholder must follow in order to have its Notes purchased; (v) that a Holder may tender all or any portion of its Notes, subject to the requirement that any portion of a Note tendered must be in a minimum denomination of twenty five dollars ($2,000 in principal amount or in a principal amount denomination 25.00) and integral multiples of any integral multiple of twenty five dollars ($1,000 25.00) in excess thereof; (vi) the place or places where Notes are to be surrendered for tender pursuant to the Fundamental Change Offer; (vii) each Holder electing to tender a Note pursuant to the Fundamental Change Offer will be required to surrender such Note at the place or places specified in the offer prior to the close of business on the expiration date (such Note being, if the Issuer or the Trustee so requires, duly endorsed or accompanied by a duly executed written instrument of transfer); (viii) interest on any Note not tendered, or tendered but not purchased by the Issuer pursuant to the Fundamental Change Offer, will continue to accrue; (ix) on the purchase date the purchase price will become due and payable on each Note accepted for purchase, and interest on Notes purchased will cease to accrue on and after the purchase date; (x) Holders are entitled to withdraw tendered Notes (in a minimum denomination of twenty five dollars ($2,000 in principal amount or in a principal amount denomination 25.00) and integral multiples of any integral multiple of twenty five dollars ($1,000 25.00) in excess thereof) by giving notice, which must be received by the Issuer or the Trustee not later than the close of business on the applicable expiration date, setting forth the name of the Holder, the principal amount of the tendered Notes, the certificate number of the tendered Notes and a statement that the Holder is withdrawing all or a portion of the tender; (xi) if any Note is purchased in part, new Notes equal in principal amount to the unpurchased portion of the Note will be issued; and (xii) if any Note contains a CUSIP or ISIN number, no representation is being made as to the correctness of the CUSIP or ISIN number either as printed on the Notes or as contained in the offer and that the Holder should rely only on the other identification numbers printed on the Notes. Prior to the purchase date, the Issuer will accept tendered Notes for purchase as required by the Fundamental Change Offer and deliver to the Trustee all Notes so accepted together with an Officer’s Certificate specifying which Notes have been accepted for purchase. On the purchase date, the purchase price will become due and payable on each Note accepted for purchase, and interest on Notes purchased will cease to accrue on and after the purchase date. The Trustee will promptly return to Holders any Notes not accepted for purchase and send to Holders new Notes equal in principal amount to any unpurchased portion of any Notes accepted for purchase in part. The Issuer will not be required to make a Fundamental Change Offer following a Fundamental Change if (x) a third party makes the Fundamental Change Offer in the manner, at the times and otherwise in compliance with the requirements set forth herein applicable to a Fundamental Change Offer made by the Issuer and purchases all Notes validly tendered and not withdrawn under such Fundamental Change Offer; Offer or (y) if the Issuer has exercised the Issuer’s option to redeem all the Notes pursuant to Article III hereof and Article III of the Base Indenture. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Notes as a result of a Fundamental Change. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.01, the Issuer will comply with the applicable securities laws and regulations and shall not be deemed to have breached the Issuer’s obligations under this Section 4.01 by virtue of the Issuer’s compliance with such securities laws or regulations. Notwithstanding anything to the contrary in the Indenture, the Notes or the Guaranties, a Fundamental Change Offer may be made in advance of a Change of Control, or conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of such Fundamental Change Offer. (C) Notwithstanding anything to the contrary in the Indenture, the Notes or the Guaranties, the provisions under the Indenture relative to the Issuer’s obligation to make an offer to purchase the Notes as a result of a Fundamental Change may be waived or modified with the written consent of the Holders of a majority in principal amount of the Notes.

FUNDAMENTAL CHANGE OFFER. (A) Upon the occurrence of a Fundamental Change, each Noteholder shall have the right to require that the Issuer purchase such Noteholder’s Notes at a purchase price in cash equal to one hundred and one percent (101%) of the principal amount thereof on the date of purchase plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on the Regular Record Date to receive interest due on the relevant Interest Payment Date). (B) Within thirty (30) days following any Fundamental Change, unless the Issuer has exercised its option to redeem all the Notes pursuant to Article III hereof and Article III of the Base Indenture, the Issuer shall mail (or, if the Notes are held in the form of one or more Global Securities, deliver electronically) a notice to each Noteholder with a copy to the Trustee (the “Fundamental Change Offer”) stating: (i) that a Fundamental Change has occurred and that such Noteholder has the right to require the Issuer to purchase such Noteholder’s Notes at a purchase price in cash equal to one hundred and one percent (101%) of the principal amount thereof on the date of purchase, plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Noteholders of record on the Regular Record Date to receive interest on the relevant Interest Payment Date); (ii) the circumstances and relevant facts regarding such Fundamental Change, at a minimum to include: (a) a description of material developments in the Issuer’s business subsequent to the date of the latest of the financial statements (including a description of the events requiring the Issuer to make the Fundamental Change Offer), and (b) if applicable, appropriate pro forma financial information (including pro forma historical income, cash flow and capitalization, in each case after giving effect to such Fundamental Change) and the events requiring the Issuer to make the Fundamental Change Offer; (iii) the purchase date (which shall be no earlier than thirty (30) days nor later than sixty (60) days from the date such notice is mailed or electronically delivered); (iv) the instructions, as determined by the Issuer, consistent with this Section 4.01, that a Noteholder must follow in order to have its Notes purchased; (v) that a Holder may tender all or any portion of its Notes, subject to the requirement that any portion of a Note tendered must be in a minimum denomination of $2,000 in principal amount or in a principal amount denomination of any integral multiple of $1,000 in excess thereof; (vi) the place or places where Notes are to be surrendered for tender pursuant to the Fundamental Change Offer; (vii) each Holder electing to tender a Note pursuant to the Fundamental Change Offer will be required to surrender such Note at the place or places specified in the offer prior to the close of business on the expiration date (such Note being, if the Issuer or the Trustee so requires, duly endorsed or accompanied by a duly executed written instrument of transfer); (viii) interest on any Note not tendered, or tendered but not purchased by the Issuer pursuant to the Fundamental Change Offer, will continue to accrue; (ix) on the purchase date the purchase price will become due and payable on each Note accepted for purchase, and interest on Notes purchased will cease to accrue on and after the purchase date; (x) Holders are entitled to withdraw tendered Notes (in a minimum denomination of $2,000 in principal amount or in a principal amount denomination of any integral multiple of $1,000 in excess thereof) by giving notice, which must be received by the Issuer or the Trustee not later than the close of business on the applicable expiration date, setting forth the name of the Holder, the principal amount of the tendered Notes, the certificate number of the tendered Notes and a statement that the Holder is withdrawing all or a portion of the tender; (xi) if any Note is purchased in part, new Notes equal in principal amount to the unpurchased portion of the Note will be issued; and (xii) if any Note contains a CUSIP or ISIN number, no representation is being made as to the correctness of the CUSIP or ISIN number either as printed on the Notes or as contained in the offer and that the Holder should rely only on the other identification numbers printed on the Notes. Prior to the purchase date, the Issuer will accept tendered Notes for purchase as required by the Fundamental Change Offer and deliver to the Trustee all Notes so accepted together with an Officer’s Certificate specifying which Notes have been accepted for purchase. On the purchase date, the purchase price will become due and payable on each Note accepted for purchase, and interest on Notes purchased will cease to accrue on and after the purchase date. The Trustee will promptly return to Holders any Notes not accepted for purchase and send to Holders new Notes equal in principal amount to any unpurchased portion of any Notes accepted for purchase in part. The Issuer will not be required to make a Fundamental Change Offer following a Fundamental Change if (x) a third party makes the Fundamental Change Offer in the manner, at the times and otherwise in compliance with the requirements set forth herein applicable to a Fundamental Change Offer made by the Issuer and purchases all Notes validly tendered and not withdrawn under such Fundamental Change Offer; Offer or (y) if the Issuer has exercised the Issuer’s option to redeem all the Notes pursuant to Article III hereof and Article III of the Base Indenture. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Notes as a result of a Fundamental Change. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.01, the Issuer will comply with the applicable securities laws and regulations and shall not be deemed to have breached the Issuer’s obligations under this Section 4.01 by virtue of the Issuer’s compliance with such securities laws or regulations. Notwithstanding anything to the contrary in the Indenture, the Notes or the Guaranties, a Fundamental Change Offer may be made in advance of a Change of Control, or conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of such Fundamental Change Offer. (C) Notwithstanding anything to the contrary in the Indenture, the Notes or the Guaranties, the provisions under the Indenture relative to the Issuer’s obligation to make an offer to purchase the Notes as a result of a Fundamental Change may be waived or modified with the written consent of the Holders of a majority in principal amount of the Notes.