Common use of Notes Tender Offer Clause in Contracts

Notes Tender Offer. If Parent shall so request: (a) The Company will commence a tender offer (the “Notes Tender Offer”) for all of the $230,000,000 aggregate principal amount at maturity of the 6% Senior Notes due 2014 (the “Senior Notes”) as promptly as reasonably practicable after the receipt of Parent’s written request, but in no event later than the mailing of the Company Proxy Statement. The aggregate consideration payable to each holder of Senior Notes pursuant to the Notes Tender Offer shall be an amount in cash established and funded by Parent and previously disclosed to the Company. The Notes Tender Offer shall be made pursuant to an Offer to Purchase and Consent Solicitation Statement prepared by the Company in connection with the Notes Tender Offer in form and substance reasonably satisfactory to Parent and the Company (as amended from time to time, the “Notes Offer to Purchase”). (b) As part of the Notes Tender Offer, the Company shall use its reasonable best efforts to solicit the consent of the holders of the Senior Notes, to amend, eliminate or waive certain sections (as selected by Parent) of the Senior Notes Indenture (the “Notes Consents”). The Surviving Corporation’s obligation to accept for payment and pay for the Senior Notes tendered pursuant to the Notes Tender Offer or make any payment for the Notes Consents shall be subject to the conditions that (i) the conditions set forth in Article VI below shall have been satisfied or waived, (ii) the simultaneous occurrence of the Effective Time and (iii) such other conditions as are customary for transactions similar to the Notes Tender Offer. Subject to the terms and conditions of the Notes Tender Offer, Parent agrees to cause the Surviving Corporation to accept for payment, as promptly as practicable after expiration of the Notes Tender Offer, all Senior Notes (and Notes Consents) validly tendered and not withdrawn. The Company will not waive any of the conditions to the Notes Tender Offer without the prior written consent of Parent. (c) The Company shall prepare, as promptly as practicable after receipt of Parent’s written request, the Notes Offer to Purchase, 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 “Notes Tender Offer Documents”), relating to the Notes Tender Offer and shall use its reasonable best efforts to disseminate to the record holders of the Senior Notes, and to the extent known by the Company, the beneficial owners of the Senior Notes (collectively, the “Noteholders”), the Notes Tender Offer Documents; provided, however, that prior to the dissemination thereof, the Company shall consult with Parent with respect to the Notes Tender Offer Documents and shall include in such Notes Tender Offer Documents all comments reasonably proposed by Parent. Parent shall provide the Company with any information for inclusion in the Notes Tender Offer Documents which may be required under applicable Law and which is reasonably requested by the Company. If at any time prior to the acceptance of Senior Notes pursuant to the Notes Tender Offer any event should occur that is required by applicable Law to be set forth in an amendment of, or a supplement to, the Notes Tender Offer Documents, the Company shall use its reasonable best efforts to prepare and disseminate such amendment or supplement; provided, however, that prior to such dissemination, the Company shall consult with Parent with respect to such amendment or supplement and shall include in such Notes Tender Offer Documents all comments reasonably proposed by Parent. The Company will notify Parent at least 48 hours prior to the dissemination of the Notes Tender Offer Documents, or 24 hours prior to the mailing of any amendment or supplement thereto, to the Noteholders. (d) At such time as the Company receives consents from Noteholders holding at least a majority of the aggregate principal amount of Senior Notes, the Company agrees to execute, and to cause all of the guarantors that are a party to the Senior Notes Indenture to execute, and will use reasonable best efforts to cause the trustee under the Senior Notes Indenture to execute, a supplemental indenture (the “Supplemental Indenture”) in order to give effect to the amendments of the Indenture contemplated in the Notes 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 all conditions to the Notes Tender Offer have been satisfied or waived by the Company and the Surviving Corporation accepts all Senior Notes (and related consents) validly tendered for purchase and payment pursuant to the Notes 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 the Surviving Corporation will thereafter be obligated to make all payments for the Senior Notes (and related consents) so tendered. (e) If the Effective Time does not occur, Parent shall pay the reasonable fees and expenses of any dealer manager, information agent, depositary or other agent retained in connection with the Notes Tender Offer each of whom shall be selected by Parent with the consent of the Company (not to be unreasonably withheld), and Parent further agrees to reimburse the Company for all of its reasonable out-of-pocket costs in connection with the Notes Tender Offer promptly following incurrence and delivery of reasonable documentation of such costs. If the Effective Time does not occur, Parent shall indemnify and hold harmless the Company, the Company Subsidiaries, their respective officers and directors and each Person, if any, who controls the Company within the meaning of Section 20 of the Exchange Act from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the Notes Tender Offer and the Notes Tender Offer Documents.

Notes Tender Offer. If Parent shall so request: (a) The Promptly after the date of this Agreement and in any event not later than five (5) Business Days after the date hereof, the Company will commence (i) a cash tender offer (the “"9 5/8% Notes Tender Offer”") for in respect of all of the $230,000,000 aggregate principal amount at maturity outstanding 9 5/8% Notes and (ii) a cash tender offer (the "9 1/4% Notes Tender Offer" and, together with the 9 5/8 Notes Tender Offer, the "Tender Offers") in respect of all of the 6outstanding 9 1/4% Senior Notes due 2014 (the “Senior Notes”) as promptly as reasonably practicable after the receipt of Parent’s written request, but in no event later than the mailing of the Company Proxy Statement. The aggregate consideration payable to each holder of Senior 9 5/8% Notes pursuant to the 9 5/8% Notes Tender Offer and each holder of 9 1/4% Notes pursuant to the 9 1/4% Notes Tender Offer, in respect of Notes validly tendered and not validly withdrawn prior to the relevant expiration date of the relevant Tender Offer, shall be an amount in cash established (the "Tender Offer Consideration") to be mutually agreed upon by the Purchaser and funded the Representatives within four (4) Business Days after the date of this Agreement. Such Tender Offer Consideration may be increased from time to time by Parent and previously disclosed the Company at any time from that set forth in the respective drafts of the Offer to Purchase delivered to the CompanyPurchaser concurrent with the execution of this Agreement. The Notes Each Tender Offer shall be made pursuant to an Offer to Purchase and Consent Solicitation Statement prepared by the Company in connection with the Notes Tender Offer in form and substance reasonably satisfactory to Parent and the Company (as amended from time to time, the “Notes relevant Offer to Purchase”). (b) As part of each of the Notes Tender OfferOffers, the Company shall use its reasonable best efforts to solicit the consent of the holders of the Senior Notesrespective series of Notes to certain amendments, including the elimination of the covenants set forth on Schedule 6.11 (the "Proposed Amendments"), to amendthe respective indentures governing such series of Notes as described in the respective Offers to Purchase (the "Notes Consents"), eliminate or waive certain sections and shall offer to pay an amount in cash (the "Consent Payment") to be mutually agreed upon by the Purchaser and the Representatives within four (4) Business Days after the date of this Agreement (which amount shall not be less than the amounts set forth in the respective drafts of the Offer to Purchase delivered to the Purchaser concurrent with the execution of this Agreement), as such amount may be increased by the Company from time to time, to each holder of a Note who is entitled to vote on the Proposed Amendments and who validly consents to the Proposed Amendments prior to the tenth (10th) day after the commencement of the relevant Tender Offer (as selected by Parent) such date may be extended, provided that the consent of the Senior Notes Indenture Purchaser (which shall not be unreasonably delayed or withheld) is required to extend more than five business days), the “Notes Consents”"Consent Date"). The Surviving Corporation’s Company represents that the Proposed Amendments do not require the consent of the holders of more than a majority of the outstanding principal amount of the 9 5/8% Notes or the 9 1/4% Notes, respectively, entitled to vote thereon and that, to the Knowledge of the Company, the aggregate principal amount of the 9 5/8% Notes and the 9 1/4% Notes not entitled to vote thereon does not exceed $800,000 and $3,184,000, respectively. (c) The Company's obligation pursuant to each Tender Offer to accept for payment and pay for any of the Senior Notes tendered pursuant to the Notes such Tender Offer or make any payment for the Notes Consents shall be subject to the conditions that following conditions: (i) the conditions set forth in Article VI below shall have been satisfied or waived, consummation of the Closing and (ii) the simultaneous occurrence of the Effective Time and (iii) such other conditions as are customary or appropriate for transactions similar to the Notes Tender OfferOffers. Subject to the terms and conditions of the Notes Tender OfferOffers, Parent the Company agrees to cause the Surviving Corporation to accept for payment, as promptly as practicable after expiration of payment and to pay for (at the times specified in the relevant Offer to Purchase) all Notes Tender Offer, all Senior Notes (and Notes Consents) validly tendered and not validly withdrawn. The Company will not waive any of the conditions to the Notes either Tender Offer without the prior written consent of Parentthe Purchaser, which consent shall not be unreasonably delayed or withheld. (cd) The Company shall prepareshall, as promptly as practicable after receipt the date of Parent’s written requestthis Agreement, (i) complete the Notes Offer preparation of the Offers to Purchase, 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 “Notes "Tender Offer Documents”"), relating to the Notes each Tender Offer and shall use its reasonable best efforts to (ii) disseminate to the record holders of the Senior Notes9 5/8% Notes and 9 1/4% Notes and, and to the extent known by the Company, the beneficial owners of the Senior Notes thereof (collectively, the “"Noteholders”"), the Notes Tender Offer DocumentsDocuments relating to the applicable Tender Offer; provided, however, that prior to the dissemination thereof, the Company shall consult with Parent the Purchaser with respect to all of the Notes Tender Offer Documents and shall include in such Notes afford the Purchaser reasonable opportunity to comment thereon. The Tender Offer Documents will comply with all comments reasonably proposed by ParentApplicable Laws and the Company shall make all filings or obtain all consents required under Applicable Law with respect thereto. Parent The Purchaser shall provide the Company with any information for inclusion in the Notes Tender Offer Documents which may be required under applicable Law Applicable Laws and which is reasonably requested by the Company. If at any time prior to the acceptance of Senior the 9 5/8% Notes or 9 1/4% Notes pursuant to the Notes Tender Offer Offers, any event should occur that is required by applicable Applicable Law to be set forth in an amendment of, or a supplement to, any of the Notes Tender Offer Documents, the Company shall use its reasonable best efforts to will prepare and disseminate such amendment or supplement; provided, however, that prior to such dissemination, the Company shall consult with Parent the Purchaser with respect to such amendment or supplement and shall include in such Notes Tender Offer Documents all comments reasonably proposed by Parentafford the Purchaser reasonable opportunity to comment thereon. The Company will notify Parent the Purchaser at least 48 hours prior to the dissemination of the Notes Tender Offer Documents, or 24 hours three (3) Business Days prior to the mailing of any amendment or supplement thereto, to the Tender Offer Documents to the Noteholders. (de) At With respect to each of the 9 5/8% Notes and 9 1/4% Notes, at such time as the Company receives consents Note Consents from Noteholders holding at least a majority of the aggregate principal amount of Senior Noteseach such series entitled to vote thereon, the Company agrees to execute, and to cause all of the guarantors that are a party to the Senior Notes Indenture indenture governing such notes (the "Applicable Indenture") to execute, and will use reasonable best efforts to cause the trustee under the Senior Notes Applicable Indenture to execute, a supplemental indenture (the “a "Supplemental Indenture”") in order to give effect to the amendments of the Indenture contemplated in the Notes Tender Offer Documentsapplicable Proposed Amendments; provided, however, that notwithstanding the fact that the any Supplemental Indenture will become effective upon such execution, the proposed amendments Proposed Amendments set forth therein (the “Proposed Amendments”) will not become operative unless and until all conditions to the Notes such Tender Offer have been satisfied or waived by the Company and the Surviving Corporation Company accepts all Senior on the Closing Date the 9 5/8% Notes or 9 1/4% Notes, as applicable, (and related consentsNotes Consents) validly tendered and not theretofore validly withdrawn for purchase and payment pursuant to the Notes such Tender Offer. In such event, the parties hereto agree agree, and the Tender Offer Documents will provide, that the Proposed Amendments will be deemed operative as of immediately prior to such acceptance for paymentpayment on the Closing Date, and the Surviving Corporation Company will thereafter be obligated to make pay all payments for Tender Offer Consideration and Consent Payments in accordance with the Senior Notes (and related consents) so tenderedterms of the relevant Offer to Purchase. (ef) If at any time prior to the Closing Date any information should be discovered by any party hereto, which should be set forth in an amendment or supplement to any Tender Offer Documents mailed to any Noteholder so that such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and, to the extent required by Applicable Law, the Company shall promptly prepare an appropriate amendment or supplement describing such information, and, if required, file such amendment or supplement with the SEC or disseminate such amendment or supplement to the applicable Noteholders. (g) If the Effective Time does Notes Consent Condition shall not occurhave been satisfied by the Closing Date with respect to either or both of the 9 5/8% Notes or the 9 1/4% Notes, Parent shall pay then, at the reasonable fees Purchaser's election and expenses provided the Purchaser complies with subsection (h) of any dealer managerthis Section 6.11, information agent, depositary or other agent retained in connection with on the Notes Tender Offer each of whom shall be selected by Parent with the consent of Closing Date the Company (not i) shall irrevocably deposit with the applicable trustee the amount required to satisfy the applicable "covenant defeasance" condition of the 9 5/8% Notes or the 9 1/4% Notes, as applicable, and (ii) shall comply with all other conditions to a "covenant defeasance" that are capable of being satisfied by the Closing Date (a "Note Defeasance"). (h) The Purchaser shall take any and all necessary action to provide, or cause to be unreasonably withheld)provided, and Parent further agrees to reimburse the Company for all of its reasonable out-of-pocket costs at the Closing funds in connection with an amount equal to the Closing Date Indebtedness attributable to the 9 5/8% Notes or 9 1/4% Notes, as applicable, validly tendered and not theretofore validly withdrawn pursuant to the relevant Tender Offer promptly following incurrence and delivery of reasonable documentation of such costs. If the Effective Time does not occurOffer, Parent which funds shall indemnify and hold harmless be used by the Company, together with other funds available to the Company SubsidiariesCompany, their respective officers and directors and each Personto consummate the Tender Offers and/or any required Note Defeasance on the Closing Date, if any, who controls provided that the Company within conditions to the meaning of Section 20 consummation of the Exchange Act from and against any and Closing have been satisfied or waived. (i) Each of the Significant Stockholders hereby agree to tender all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred of the Notes held by them in connection the Tender Offers and to cause each of their respective Affiliates (provided that the Xxxxxx Stockholders will not be so obligated with respect to Xxxxxx Brothers Inc. or any Affiliates of Xxxxxx Brothers Inc. other than the Xxxxxx Stockholders) to tender all of the Notes held by them in the Tender Offer and the Notes Tender Offer DocumentsOffers.

Notes Tender Offer. If Parent shall so request: (a) The Provided that this Agreement shall not have been terminated in accordance with Section 8.1, the Company will commence a tender offer (the “Notes Tender Offer”) for all of the $230,000,000 200,000,000 aggregate principal amount at maturity of the 67-5/8% Senior Notes due 2014 2011 (the “Senior Notes”) as promptly as reasonably practicable after the receipt execution of Parent’s written requestthis Agreement, but in no event later than the mailing of the Company Proxy Statement. The aggregate consideration payable to each holder of Senior Notes pursuant to the Notes Tender Offer shall be an amount in cash established and funded by Parent and previously disclosed to the CompanyParent. The Notes Tender Offer shall be made pursuant to an Offer to Purchase and Consent Solicitation Statement prepared by the Company in connection with the Notes Tender Offer in form and substance reasonably satisfactory to Parent and the Company (as amended from time to time, the “Notes Offer to Purchase”). (b) As part of the Notes Tender Offer, the Company shall use its reasonable best efforts to solicit the consent of the holders of the Senior Notes, to amend, eliminate or waive certain sections (as selected by Parent) of the Senior Notes Indenture (the “Notes Consents”). The Surviving Corporation’s obligation to accept for payment and pay for the Senior Notes tendered pursuant to the Notes Tender Offer or make any payment for the Notes Consents shall be subject to the conditions that (i) the conditions set forth in Article VI 7 below shall have been satisfied or waived, (ii) the simultaneous occurrence of the Effective Time and (iii) such other conditions as are customary for transactions similar to the Notes Tender Offer. Subject to the terms and conditions of the Notes Tender Offer, the Parent agrees to cause the Surviving Corporation to accept for payment, as promptly as practicable after expiration of the Notes Tender Offer, all Senior Notes (and Notes Consents) validly tendered and not withdrawn. The Company will not waive any of the conditions to the Notes Tender Offer without the prior written consent of Parent. (c) The Company shall prepare, as promptly as practicable after receipt of Parent’s written requestpracticable, the Notes Offer to Purchase, 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 “Notes Tender Offer Documents”), relating to the Notes Tender Offer and shall use its reasonable best efforts to disseminate to the record holders of the Senior Notes, and to the extent known by the Company, the beneficial owners of the Senior Notes (collectively, the “Noteholders”), the Notes Tender Offer Documents; provided, however, that prior to the dissemination thereof, the Company shall consult with Parent with respect to the Notes Tender Offer Documents and shall include in such Notes Tender Offer Documents all comments reasonably proposed by Parent. Parent shall provide the Company with any information for inclusion in the Notes Tender Offer Documents which may be required under applicable Law and which is reasonably requested by the Company. If at any time prior to the acceptance of Senior Notes pursuant to the Notes Tender Offer any event should occur that is required by applicable Law to be set forth in an amendment of, or a supplement to, the Notes Tender Offer Documents, the Company shall use its reasonable best efforts to will prepare and disseminate such amendment or supplement; provided, however, that prior to such dissemination, the Company shall consult with Parent with respect to such amendment or supplement and shall include in such Notes Tender Offer Documents all comments reasonably proposed by Parent. The Company will notify Parent at least 48 hours prior to the dissemination of the Notes Tender Offer Documents, or 24 hours prior to the mailing of any amendment or supplement thereto, to the Noteholders. (d) At such time as the Company receives consents from Noteholders holding at least a majority of the aggregate principal amount of Senior Notes, the Company agrees to execute, and to cause all of the guarantors that are a party to the Senior Notes Indenture to execute, and will use reasonable best efforts to cause the trustee under the Senior Notes Indenture to execute, a supplemental indenture (the “Supplemental Indenture”) in order to give effect to the amendments of the Indenture contemplated in the Notes 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 all conditions to the Notes Tender Offer have been satisfied or waived by the Company and the Surviving Corporation Company accepts all Senior Notes (and related consents) validly tendered for purchase and payment pursuant to the Notes 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 the Surviving Corporation Company will thereafter be obligated to make all payments for the Senior Notes (and related consents) so tendered. (e) If the Effective Time does not occur, Parent shall pay the reasonable fees and expenses of any dealer manager, information agent, depositary or other agent retained in connection with the Notes Tender Offer each of whom shall be selected by Parent with the consent of the Company (not to be unreasonably withheld), and Parent further agrees to reimburse the Company for all of its reasonable out-of-pocket costs in connection with the Notes Tender Offer promptly following incurrence and delivery of reasonable documentation of such costs. If the Effective Time does not occur, Parent shall indemnify and hold harmless the Company, the Company Subsidiaries, their respective officers and directors and each Person, if any, who controls the Company within the meaning of Section 20 of the Exchange Act from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the Notes Tender Offer and the Notes Tender Offer Documents.

Notes Tender Offer. If Parent shall so request: (a) The Provided that this Agreement shall not have been terminated in accordance with Section 8.1, the Company will commence a tender offer (the “"Notes Tender Offer”") for all of the $230,000,000 200,000,000 aggregate principal amount at maturity of the 67-5/8% Senior Notes due 2014 2011 (the “"Senior Notes”") as promptly as reasonably practicable after the receipt execution of Parent’s written requestthis Agreement, but in no event later than the mailing of the Company Proxy Statement. The aggregate consideration payable to each holder of Senior Notes pursuant to the Notes Tender Offer shall be an amount in cash established and funded by Parent and previously disclosed to the CompanyParent. The Notes Tender Offer shall be made pursuant to an Offer to Purchase and Consent Solicitation Statement prepared by the Company in connection with the Notes Tender Offer in form and substance reasonably satisfactory to Parent and the Company (as amended from time to time, the “"Notes Offer to Purchase”"). (b) As part of the Notes Tender Offer, the Company shall use its reasonable best efforts to solicit the consent of the holders of the Senior Notes, to amend, eliminate or waive certain sections (as selected by Parent) of the Senior Notes Indenture (the “"Notes Consents”"). The Surviving Corporation’s 's obligation to accept for payment and pay for the Senior Notes tendered pursuant to the Notes Tender Offer or make any payment for the Notes Consents shall be subject to the conditions that (i) the conditions set forth in Article VI 7 below shall have been satisfied or waived, (ii) the simultaneous occurrence of the Effective Time and (iii) such other conditions as are customary for transactions similar to the Notes Tender Offer. Subject to the terms and conditions of the Notes Tender Offer, the Parent agrees to cause the Surviving Corporation to accept for payment, as promptly as practicable after expiration of the Notes Tender Offer, all Senior Notes (and Notes Consents) validly tendered and not withdrawn. The Company will not waive any of the conditions to the Notes Tender Offer without the prior written consent of Parent. (c) The Company shall prepare, as promptly as practicable after receipt of Parent’s written requestpracticable, the Notes Offer to Purchase, 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 “"Notes Tender Offer Documents”"), relating to the Notes Tender Offer and shall use its reasonable best efforts to disseminate to the record holders of the Senior Notes, and to the extent known by the Company, the beneficial owners of the Senior Notes (collectively, the “"Noteholders”"), the Notes Tender Offer Documents; provided, however, that prior to the dissemination thereof, the Company shall consult with Parent with respect to the Notes Tender Offer Documents and shall include in such Notes Tender Offer Documents all comments reasonably proposed by Parent. Parent shall provide the Company with any information for inclusion in the Notes Tender Offer Documents which may be required under applicable Law and which is reasonably requested by the Company. If at any time prior to the acceptance of Senior Notes pursuant to the Notes Tender Offer any event should occur that is required by applicable Law to be set forth in an amendment of, or a supplement to, the Notes Tender Offer Documents, the Company shall use its reasonable best efforts to will prepare and disseminate such amendment or supplement; provided, however, that prior to such dissemination, the Company shall consult with Parent with respect to such amendment or supplement and shall include in such Notes Tender Offer Documents all comments reasonably proposed by Parent. The Company will notify Parent at least 48 hours prior to the dissemination of the Notes Tender Offer Documents, or 24 hours prior to the mailing of any amendment or supplement thereto, to the Noteholders. (d) At such time as the Company receives consents from Noteholders holding at least a majority of the aggregate principal amount of Senior Notes, the Company agrees to execute, and to cause all of the guarantors that are a party to the Senior Notes Indenture to execute, and will use reasonable best efforts to cause the trustee under the Senior Notes Indenture to execute, a supplemental indenture (the “"Supplemental Indenture”") in order to give effect to the amendments of the Indenture contemplated in the Notes 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 all conditions to the Notes Tender Offer have been satisfied or waived by the Company and the Surviving Corporation Company accepts all Senior Notes (and related consents) validly tendered for purchase and payment pursuant to the Notes 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 the Surviving Corporation Company will thereafter be obligated to make all payments for the Senior Notes (and related consents) so tendered. (e) If the Effective Time does not occur, Parent shall pay the reasonable fees and expenses of any dealer manager, information agent, depositary or other agent retained in connection with the Notes Tender Offer each of whom shall be selected by Parent with the consent of the Company (not to be unreasonably withheld), and Parent further agrees to reimburse the Company for all of its reasonable out-of-pocket costs in connection with the Notes Tender Offer promptly following incurrence and delivery of reasonable documentation of such costs. If the Effective Time does not occur, Parent shall indemnify and hold harmless the Company, the Company Subsidiaries, their respective officers and directors and each Person, if any, who controls the Company within the meaning of Section 20 of the Exchange Act from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the Notes Tender Offer and the Notes Tender Offer Documents.