Common use of Note Tender Offer Clause in Contracts

Note Tender Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 and none of the events or circumstances set forth in Annex B hereto shall have occurred or be existing, Purchaser agrees that it or its designee will, and Parent agrees to cause Purchaser or its designee, as the case may be, to commence the Note Offer to Purchase as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the first public announcement of the execution hereof. The aggregate consideration payable to each holder of Notes pursuant to the Note Offer to Purchase and related Consent Solicitation shall be an amount equal to 55% of the principal amount of the Notes held by such holder and a Note DCCR. In connection with the Note Offer to Purchase, Purchaser intends to solicit Consents in substance previously described to the Company to amend or eliminate certain sections of the Indenture, dated as of April 19, 1996 among the Company, the Guarantors party thereto and Fleet National Bank, as Trustee (the "Indenture") and any other sections thereof agreed to by the Company, so that such Sections are not applicable to or after the Merger or are amended following the consummation of the Note Tender Offer or the Merger. Purchaser agrees that its obligation to accept for payment and pay for the Notes and related Consents tendered pursuant to the Note Tender Offer shall be subject to the condition that (i) the aggregate principal amount of Notes validly tendered and not withdrawn prior to the expiration of the Note Tender Offer, combined with the Notes already owned by Parent, Purchaser or any of their affiliates, constitutes at least 66 2/3% in aggregate principal amount of the then outstanding Notes at the expiration of the Note Tender Offer (the "Minimum Note Condition"), (ii) Purchaser receive Consents from at least 66 2/3% of the outstanding principal amount of the Notes, (iii) Purchaser has acquired or is simultaneously acquiring not less than 51% of the then outstanding Shares (the "Stock Purchase Condition"), and (iv) also shall be subject to the satisfaction of the other conditions set forth in Annex B hereto (including, without limitation, the Minimum Stock Condition). Purchaser expressly reserves the right to waive any such condition, to increase the price payable for each Note and related Consent tendered in the Note Tender Offer, and to make any other changes in the terms and conditions of the Note Tender Offer; provided, however, that Purchaser agrees that no change may be made without the consent of the Company which decreases the price payable for each Note and related Consent tendered in the Note Tender Offer, which reduces the Minimum Note Condition, which eliminates the Stock Purchase Condition which otherwise modifies or amends the conditions to the Note Tender Offer or any other term of the Note Tender Offer in a manner that is materially adverse to the holders of the Notes, which imposes conditions to the Note Tender Offer in addition to those set forth in Annex B hereto, or which extends the expiration date of the Note Tender Offer beyond January 4, 1999 (except that Purchaser may extend the expiration date of the Note Tender Offer through January 9, 1999 as required to comply with any rule, regulation or interpretation of the SEC). The Purchaser further agrees that unless otherwise agreed to by the Company, it will be obligated to extend the expiration of the Consent Solicitation until the earlier of (i) the receipt of Consents from at least 66-2/3 of the then outstanding principal amount of the Notes and tender to the Purchaser of not less than 66-2/3% in aggregate principal amount of the then outstanding Notes and (ii) 20 business days after the commencement of the Note Tender Offer. The Note Tender Offer shall provide that any tender of Notes under the Note Tender Offer shall also constitute a Consent. Subject to the terms and conditions of the Note Tender Offer (including, without limitation, the Minimum Note Condition), Purchaser agrees to pay, as promptly as practicable after expiration of the Note Tender Offer, for all Notes and related Consents validly tendered and not withdrawn. (b) Parent and Purchaser agree to disseminate to the record holders of the Notes, and to the extent disclosed to Parent or Purchaser by the Company, the beneficial owners of the Notes (collectively, the "Noteholders"), the Note Tender Offer pursuant to the terms of an offer to purchase and consent solicitation statement, together with related letters of transmittal and similar ancillary agreements (such documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Note Tender Offer Documents"), which shall have been provided to the Company and its counsel a reasonable time prior to dissemination to holders of the Notes and to which the Company shall not have reasonably objected. Parent, Purchaser and the Company agree to correct promptly any information provided by any of them for use in the Note Tender Offer Documents which shall have become false or misleading, and Parent and Purchaser further agree to take all steps necessary to cause the Note Tender Offer Documents as so corrected to be disseminated to holders of Notes, in each case as and to the extent required by applicable federal securities laws. (c) At such time as Purchaser receives Consents from at least 66 2/3% of the outstanding principal amount of the Notes, the Company agrees to execute, and to cause the Guarantors party to the Indenture to execute, and will use all reasonable efforts to cause the trustee under the Indenture to execute, a supplemental indenture (the "Supplemental Indenture") in order to give effect to the amendments of the Indenture contemplated in the Note Tender Offer Documents; provided, however, that notwithstanding the fact that the Supplemental Indenture will become effective upon such execution, the proposed amendments set forth therein (the "Proposed Amendments") will not become operative unless and until the Minimum Note Condition is satisfied and all other conditions to the Note Tender Offer set forth on Annex B have been satisfied or waived by Parent and Purchaser and Purchaser accepts all Notes (and related Consents) validly tendered for purchase and payment pursuant to the Note Tender Offer. In such event, the parties hereto agree that the Proposed Amendments will be deemed operative as of immediately prior to such acceptance for payment, and Purchaser will thereafter be obligated to make all payments for the Notes (and related Consents) so tendered. (d) The Company agrees to promptly furnish Purchaser with mailing labels containing the names and addresses of all record holders of Notes and with security position listings of the Notes held in depositories, each as of a recent date, together with all other available listings and computer files containing names, addresses and security position listings of Noteholders. The Company agrees to furnish Purchaser with such additional information, including, without limitation, updated listings and computer files of Noteholders, mailing labels and security position listings, and such other assistance as Purchaser or its agents may reasonably request. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Note Tender Offer Documents and any other documents necessary to consummate the transactions contemplated thereby, Purchaser shall hold in confidence the information contained in such labels, listings and files, shall use such information only in connection with the Note Tender Offer and, if this Agreement shall be terminated in accordance with Section 8.01, shall deliver to the Company all copies of such information then in its possession. (e) Parent and Purchaser agree that they will not solicit Consents in the Consent Solicitation to amend or eliminate any section of the Indenture, that, by the terms thereof, requires the approval of the holders of 100% of the outstanding principal amount of the Notes.

Note Tender Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 and none of the events or circumstances set forth in Annex B hereto shall have occurred or be existing, Purchaser Parent agrees that it or its designee will, and Parent agrees to cause Purchaser or its designee, as the case may be, to will commence the Note Offer to Purchase as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the first public announcement of the execution hereof. The aggregate consideration payable to each holder of Notes pursuant to the Note Offer to Purchase and related Consent Solicitation shall be an amount equal to 55% of the principal amount of the Notes held by such holder and a Note DCCR. In connection with the Note Offer to Purchase, Purchaser Parent intends to solicit Consents to amend Sections 4.02 (other than the first and last sentences thereof), 4.03(a) (in substance previously described order to permit loans to be made to the Company by its affiliates), 4.04 (in order to amend or eliminate certain sections the restrictions on indebtedness of the IndentureCompany's foreign subsidiaries), dated as 4.05, 4.06, 4.07, 4.08, 4.09, 4.11, 4.12, 4.16 and 5.01(a)(iii) of April 19, 1996 among the Company, the Guarantors party thereto and Fleet National Bank, as Trustee (the "Indenture") Indenture and any other sections thereof agreed to by the Company, so that such Sections are not applicable to or after the Merger or are amended following the consummation of the Note Tender Offer or the Merger. Purchaser Parent agrees that its obligation to accept for payment and pay for the Notes and related Consents tendered pursuant to the Note Tender Offer shall be subject to the condition that (i) the aggregate principal amount of Notes validly tendered and not withdrawn prior to the expiration of the Note Tender Offer, combined with the Notes already owned by Parent, Purchaser or any of their affiliates, constitutes at least 66 2/3% in aggregate principal amount of the then outstanding Notes at the expiration of the Note Tender Offer (the "Minimum Note Condition"), (ii) Purchaser Parent receive Consents from at least 66 2/3% a majority of the outstanding principal amount of the Notes, (iii) Purchaser has acquired or is simultaneously acquiring not less than 51% of the then outstanding Shares Notes (the "Stock Purchase Requisite Consent Condition"), ) and (iv) also shall be subject to the satisfaction of the other conditions set forth in Annex B hereto (including, without limitation, the Minimum Stock Condition)hereto. Purchaser Parent expressly reserves the right to waive any such condition, to increase the price payable for each Note and related Consent tendered in the Note Tender Offer, and to make any other changes in the terms and conditions of the Note Tender Offer; provided, however, that Purchaser Parent agrees that no change may be made without the consent of the Company which decreases the price payable for each Note and related Consent tendered in the Note Tender Offer, which changes the form of consideration to be paid in the Note Tender Offer, which reduces the Minimum Note Condition, which eliminates the Stock Purchase Condition which otherwise modifies or amends the conditions maximum number of Notes to be purchased in the Note Tender Offer or any other term of the Note Tender Offer in a manner that is materially adverse to the holders of the Notes, which imposes conditions to the Note Tender Offer in addition to those set forth in Annex B hereto, or which extends the expiration date of the Note Tender Offer beyond January 4, 1999 (except that Purchaser may extend the expiration date of the Note Tender Offer through January 9, 1999 as required to comply with any rule, regulation or interpretation of the SEC). The Purchaser further agrees that unless otherwise agreed to by the Company, it will be obligated to extend the expiration of the Consent Solicitation until the earlier of (i) the receipt of Consents from at least 66-2/3 of the then outstanding principal amount of the Notes and tender to the Purchaser of not less than 66-2/3% in aggregate principal amount of the then outstanding Notes and (ii) 20 business days after the commencement of the Note Tender Offer. The Note Tender Offer shall provide that any tender of Notes under the Note Tender Offer shall also constitute a Consent. Subject to the terms and conditions of the Note Tender Offer (including, without limitation, the Minimum Note Requisite Consent Condition), Purchaser Parent agrees to pay, as promptly as practicable after expiration of the Note Tender Offer, for all Notes and related Consents validly tendered and not withdrawn. (b) Parent and Purchaser agree agrees to disseminate to the record holders of the Notes, and to the extent disclosed to Parent or Purchaser by the Company, the beneficial owners of the Notes (collectively, the "Noteholders"), the Note Tender Offer pursuant to the terms of an offer to purchase and consent solicitation statement, together with related letters of transmittal and similar ancillary agreements (such documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Note Tender Offer Documents"), which shall have been provided to the Company and its counsel a reasonable time prior to dissemination to holders of the Notes and to which the Company shall not have reasonably objected. Parent, Purchaser and the Company agree to correct promptly any information provided by any of them for use in the Note Tender Offer Documents which shall have become false or misleading, and Parent and Purchaser further agree to take all steps necessary to cause the Note Tender Offer Documents as so corrected to be disseminated to holders of Notes, in each case as and to the extent required by applicable federal securities laws. (c) At such time as Purchaser receives Consents from at least 66 2/3% of the outstanding principal amount of the Notes, the Company agrees to execute, and to cause the Guarantors party to the Indenture to execute, and will use all reasonable efforts to cause the trustee under the Indenture to execute, a supplemental indenture (the "Supplemental Indenture") in order to give effect to the amendments of the Indenture contemplated in the Note Tender Offer Documents; provided, however, that notwithstanding the fact that the Supplemental Indenture will become effective upon such execution, the proposed amendments set forth therein (the "Proposed Amendments") will not become operative unless and until the Minimum Note Condition is satisfied and all other conditions to the Note Tender Offer set forth on Annex B have been satisfied or waived by Parent and Purchaser and Purchaser accepts all Notes (and related Consents) validly tendered for purchase and payment pursuant to the Note Tender Offer. In such event, the parties hereto agree that the Proposed Amendments will be deemed operative as of immediately prior to such acceptance for payment, and Purchaser will thereafter be obligated to make all payments for the Notes (and related Consents) so tendered. (d) The Company agrees to promptly furnish Purchaser with mailing labels containing the names and addresses of all record holders of Notes and with security position listings of the Notes held in depositories, each as of a recent date, together with all other available listings and computer files containing names, addresses and security position listings of Noteholders. The Company agrees to furnish Purchaser with such additional information, including, without limitation, updated listings and computer files of Noteholders, mailing labels and security position listings, and such other assistance as Purchaser or its agents may reasonably request. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Note Tender Offer Documents and any other documents necessary to consummate the transactions contemplated thereby, Purchaser shall hold in confidence the information contained in such labels, listings and files, shall use such information only in connection with the Note Tender Offer and, if this Agreement shall be terminated in accordance with Section 8.01, shall deliver to the Company all copies of such information then in its possession. (e) Parent and Purchaser agree that they will not solicit Consents in the Consent Solicitation to amend or eliminate any section of the Indenture, that, by the terms thereof, requires the approval of the holders of 100% of the outstanding principal amount of the Notes.been

Note Tender Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 and none of the events or circumstances set forth in Annex B hereto shall have occurred or be existing, Purchaser Parent agrees that it or its designee will, and Parent agrees to cause Purchaser or its designee, as the case may be, to will commence the Note Offer to Purchase as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the first public announcement of the execution hereof. The aggregate consideration payable to each holder of Notes pursuant to the Note Offer to Purchase and related Consent Solicitation shall be an amount equal to 55% of the principal amount of the Notes held by such holder and a Note DCCR. In connection with the Note Offer to Purchase, Purchaser Parent intends to solicit Consents to amend Sections 4.02 (other than the first and last sentences thereof), 4.03(a) (in substance previously described order to permit loans to be made to the Company by its affiliates), 4.04 (in order to amend or eliminate certain sections the restrictions on indebtedness of the IndentureCompany's foreign subsidiaries), dated as 4.05, 4.06, 4.07, 4.08, 4.09, 4.11, 4.12, 4.16 and 5.01(a)(iii) of April 19, 1996 among the Company, the Guarantors party thereto and Fleet National Bank, as Trustee (the "Indenture") Indenture and any other sections thereof agreed to by the Company, so that such Sections are not applicable to or after the Merger or are amended following the consummation of the Note Tender Offer or the Merger. Purchaser Parent agrees that its obligation to accept for payment and pay for the Notes and related Consents tendered pursuant to the Note Tender Offer shall be subject to the condition that (i) the aggregate principal amount of Notes validly tendered and not withdrawn prior to the expiration of the Note Tender Offer, combined with the Notes already owned by Parent, Purchaser or any of their affiliates, constitutes at least 66 2/3% in aggregate principal amount of the then outstanding Notes at the expiration of the Note Tender Offer (the "Minimum Note Condition"), (ii) Purchaser Parent receive Consents from at least 66 2/3% a majority of the outstanding principal amount of the Notes, (iii) Purchaser has acquired or is simultaneously acquiring not less than 51% of the then outstanding Shares Notes (the "Stock Purchase Requisite Consent Condition"), ) and (iv) also shall be subject to the satisfaction of the other conditions set forth in Annex B hereto (including, without limitation, the Minimum Stock Condition)hereto. Purchaser Parent expressly reserves the right to waive any such condition, to increase the price payable for each Note and related Consent tendered in the Note Tender Offer, and to make any other changes in the terms and conditions of the Note Tender Offer; provided, however, that Purchaser Parent agrees that no change may be made without the consent of the Company which decreases the price payable for each Note and related Consent tendered in the Note Tender Offer, which changes the form of consideration to be paid in the Note Tender Offer, which reduces the Minimum Note Condition, which eliminates the Stock Purchase Condition which otherwise modifies or amends the conditions maximum number of Notes to be purchased in the Note Tender Offer or any other term of the Note Tender Offer in a manner that is materially adverse to the holders of the Notes, which imposes conditions to the Note Tender Offer in addition to those set forth in Annex B hereto, or which extends the expiration date of the Note Tender Offer beyond January 4, 1999 (except that Purchaser may extend the expiration date of the Note Tender Offer through January 9, 1999 as required to comply with any rule, regulation or interpretation of the SEC). The Purchaser further agrees that unless otherwise agreed to by the Company, it will be obligated to extend the expiration of the Consent Solicitation until the earlier of (i) the receipt of Consents from at least 66-2/3 of the then outstanding principal amount of the Notes and tender to the Purchaser of not less than 66-2/3% in aggregate principal amount of the then outstanding Notes and (ii) 20 business days after the commencement of the Note Tender Offer. The Note Tender Offer shall provide that any tender of Notes under the Note Tender Offer shall also constitute a Consent. Subject to the terms and conditions of the Note Tender Offer (including, without limitation, the Minimum Note Requisite Consent Condition), Purchaser Parent agrees to pay, as promptly as practicable after expiration of the Note Tender Offer, for all Notes and related Consents validly tendered and not withdrawn. (b) Parent and Purchaser agree agrees to disseminate to the record holders of the Notes, and to the extent disclosed to Parent or Purchaser by the Company, the beneficial owners of the Notes (collectively, the "Noteholders"), the Note Tender Offer pursuant to the terms of an offer to purchase and consent solicitation statement, together with related letters of transmittal and similar ancillary agreements (such documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Note Tender Offer Documents"), which shall have been provided to the Company and its counsel a reasonable time prior to dissemination to holders of the Notes and to which the Company shall not have reasonably objected. Parent, Purchaser and the Company agree to correct promptly any information provided by any of them for use in the Note Tender Offer Documents which shall have become false or misleading, and Parent and Purchaser further agree agrees to take all steps necessary to cause the Note Tender Offer Documents as so corrected to be disseminated to holders of Notes, in each case as and to the extent required by applicable federal securities laws. (c) At such time as Purchaser receives Consents from at least 66 2/3% of Assuming the outstanding principal amount of Requisite Consent Condition is satisfied and all other conditions to the NotesNote Tender Offer set forth on Annex B have been satisfied or waived by Parent, the Company agrees to execute, and to cause the Guarantors party to the Indenture to execute, and will use all reasonable efforts to cause the trustee under the Indenture to execute, a supplemental indenture (the "Supplemental Indenture") in order to give effect to the amendments of the Indenture contemplated in the Note Tender Offer DocumentsDocuments immediately following the expiration date of the Note Tender Offer; provided, however, that notwithstanding the fact that the Supplemental Indenture will become effective upon such execution, the proposed amendments set forth therein in the Supplemental Indenture (the "Proposed Amendments") will not become operative unless and until the Minimum Note Condition is satisfied and all other conditions to the Note Tender Offer set forth on Annex B have been satisfied or waived by date Parent and Purchaser and Purchaser accepts all Notes (and related Consents) validly tendered for purchase and payment pursuant to the Note Tender Offer. In such event, the parties hereto agree that the Proposed Amendments will be deemed operative effective as of immediately prior to such acceptance for payment, and Purchaser Parent will thereafter be obligated to make all payments for the Notes (and related Consents) so tendered. (d) The Company agrees to promptly furnish Purchaser Parent with mailing labels containing the names and addresses of all record holders of Notes and with security position listings of the Notes held in depositories, each as of a recent date, together with all other available listings and computer files containing names, addresses and security position listings of Noteholders. The Company agrees to furnish Purchaser Parent with such additional information, including, without limitation, updated listings and computer files of Noteholders, mailing labels and security position listings, and such other assistance as Purchaser Parent or its agents may reasonably request. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Note Tender Offer Documents and any other documents necessary to consummate the transactions contemplated thereby, Purchaser Parent shall hold in confidence the information contained in such labels, listings and files, shall use such information only in connection with the Note Tender Offer and, if this Agreement shall be terminated in accordance with Section 8.01, shall deliver to the Company all copies of such information then in its possession. (e) Parent and Purchaser agree that they will not solicit Consents in the Consent Solicitation to amend or eliminate any section of the Indenture, that, by the terms thereof, requires the approval of the holders of 100% of the outstanding principal amount of the Notes.